Passage of the

Scottish Commissioner for Human Rights Bill 2005

SPPB 101

Passage of the

Scottish Commissioner for Human Rights Bill 2005

SP Bill 48 (Session 2), subsequently 2006 asp 16

SPPB 101

EDINBURGH: APS GROUP SCOTLAND £65

For information in languages other than English or in alternative formats (for example Braille, large print, audio tape or various computer formats), please send your enquiry to Public Information, The Scottish Parliament, Edinburgh, EH991SP.

You can also contact us by email [email protected] We welcome written correspondence in any language

© Parliamentary copyright. Scottish Parliamentary Corporate Body 2012.

Applications for reproduction should be made in writing to the Information Policy Team, Office of the Queen’s Printer for Scotland, Admail ADM4058, Edinburgh, EH1 1NG, or by email to: [email protected].

OQPS administers the copyright on behalf of the Scottish Parliamentary Corporate Body.

Printed and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by APS Group Scotland.

ISBN 978-1-4061-8129-6 Contents

Page Foreword

Introduction of the Bill Bill (As Introduced) (SP Bill 48) 1 Explanatory Notes (and other accompanying documents) (SP Bill 48-EN) 21 Policy Memorandum (SP Bill 48-PM) 40 Memorandum on Delegated Powers 62

Stage 1 Stage 1 Report, Justice 1 Committee 65 Written submissions to Justice 1 Committee 342 Written submission to Finance Committee 416 Extract from the Minutes, Finance Committee, 29 November 2005 420 Official Report, Finance Committee, 29 November 2005 421 Scottish Executive response to Stage 1 Report, 28 April 2006 428 Extract from the Minutes of the Parliament, 3 May 2006 438 Official Report, Meeting of the Parliament, 3 May 2006 439

Before Stage 2 Correspondence between Justice 1 Committee and the Scottish Executive 466 on proposed amendments

Stage 2 1st Marshalled List of Amendments for Stage 2 (SP Bill 48-ML1) 476 1st Groupings of Amendments for Stage 2 (SP Bill 48-G1) 495 Extract from the Minutes, Justice 1 Committee, 20 September 2006 497 Official Report, Justice 1 Committee, 20 September 2006 498

2nd Marshalled List of Amendments for Stage 2 (SP Bill 48-ML2) 522 2nd Groupings of Amendments for Stage 2 (SP Bill 48-G2) 533 Extract from the Minutes, Justice 1 Committee, 27 September 2006 535 Official Report, Justice 1 Committee, 27 September 2006 537

Bill (As Amended at Stage 2) (SP Bill 48A) 565 Revised Explanatory Notes (SP Bill 48A-EN) 587

After Stage 2 Correspondence from the Scottish Executive to Justice 1 Committee, 31 600 October 2006

Stage 3 Marshalled List of Amendments selected for Stage 3 (SP Bill 48A-ML) 609 Groupings of Amendments for Stage 3 (SP Bill 48A-G) 627 Extract from the Minutes of the Parliament, 2 November 2006 629 Official Report, Meeting of the Parliament, 2 November 2006 631

Bill (As Passed) (SP Bill 48B) 671

Foreword

Purpose of the series

The aim of this series is to bring together in a single place all the official Parliamentary documents relating to the passage of the Bill that becomes an Act of the Scottish Parliament (ASP). The list of documents included in any particular volume will depend on the nature of the Bill and the circumstances of its passage, but a typical volume will include:

• every print of the Bill (usually three – “As Introduced”, “As Amended at Stage 2” and “As Passed”); • the accompanying documents published with the “As Introduced” print of the Bill (and any revised versions published at later Stages); • every Marshalled List of amendments from Stages 2 and 3; • every Groupings list from Stages 2 and 3; • the lead Committee’s “Stage 1 report” (which itself includes reports of other committees involved in the Stage 1 process, relevant committee Minutes and extracts from the Official Report of Stage 1 proceedings); • the Official Report of the Stage 1 and Stage 3 debates in the Parliament; • the Official Report of Stage 2 committee consideration; • the Minutes (or relevant extracts) of relevant Committee meetings and of the Parliament for Stages 1 and 3.

All documents included are re-printed in the original layout and format, but with minor typographical and layout errors corrected.

Documents in each volume are arranged in the order in which they relate to the passage of the Bill through its various stages, from introduction to passing. The Act itself is not included on the grounds that it is already generally available and is, in any case, not a Parliamentary publication.

Outline of the legislative process

Bills in the Scottish Parliament follow a three-stage process. The fundamentals of the process are laid down by section 36(1) of the Scotland Act 1998, and amplified by Chapter 9 of the Parliament’s Standing Orders. In outline, the process is as follows:

• Introduction, followed by publication of the Bill and its accompanying documents; • Stage 1: the Bill is first referred to a relevant committee, which produces a report informed by evidence from interested parties, then the Parliament debates the Bill and decides whether to agree to its general principles; • Stage 2: the Bill returns to a committee for detailed consideration of amendments; • Stage 3: the Bill is considered by the Parliament, with consideration of further amendments followed by a debate and a decision on whether to pass the Bill.

After a Bill is passed, three law officers and the Secretary of State have a period of four weeks within which they may challenge the Bill under sections 33 and 35 of the

Scotland Act respectively. The Bill may then be submitted for Royal Assent, at which point it becomes an Act.

Standing Orders allow for some variations from the above pattern in some cases. For example, Bills may be referred back to a committee during Stage 3 for further Stage 2 consideration. In addition, the procedures vary for certain categories of Bills, such as Committee Bills or Emergency Bills. For some volumes in the series, relevant proceedings prior to introduction (such as pre-legislative scrutiny of a draft Bill) may be included.

The reader who is unfamiliar with Bill procedures, or with the terminology of legislation more generally, is advised to consult in the first instance the Guidance on Public Bills published by the Parliament. That Guidance, and the Standing Orders, are available for sale from Stationery Office bookshops or free of charge on the Parliament’s website (www.scottish.parliament.uk).

The series is produced by the Legislation Team within the Parliament’s Chamber Office. Comments on this volume or on the series as a whole may be sent to the Legislation Team at the Scottish Parliament, Edinburgh EH99 1SP.

Notes on this volume

The Bill to which this volume relates followed the standard 3 stage process described above.

The Justice 1 Committee issued a call for written evidence at Stage 1 and received over 50 submissions. Those submissions not published in the Stage 1 Report, including some received after the publication of the report, are included in this volume after that report.

The Finance Committee reported to the Justice 1 Committee on the Bill at Stage 1. The Finance Committee report is included in Annexe B of the Stage 1 Report. However, the minutes and the written and oral evidence for the Finance Committee meeting were not included in that report, and are, therefore, included in this volume after the report.

The Bill was introduced as the Scottish Commissioner for Human Rights Bill but enacted as the Scottish Commission for Human Rights Bill, following an amendment to the short title at Stage 3.

Forthcoming titles

The next titles in this series will be:

• SPPB 102: Planning etc (Scotland) Bill 2005 • SPPB 103: St Andrew’s Day Bank Holiday (Scotland) Bill 2005 • SPPB 104: Bankruptcy and Diligence etc. (Scotland) Bill 2005 • SPPB 105: Adoption and Children (Scotland) Bill 2006

Scottish Commissioner for Human Rights Bill [AS INTRODUCED]

CONTENTS

Section

Scottish Commissioner for Human Rights 1 Scottish Commissioner for Human Rights

General functions 2 General duty to promote human rights 3 Duty to monitor law, policy and practice 4 Information, guidance, education etc.

Inquiries 5 Power to conduct inquiries 6 Restrictions as to scope of inquiry 7 Evidence 8 Places of detention: powers of entry, inspection and interview 9 Report of inquiry 10 Confidentiality of information

Intervention in civil proceedings 11 Power to intervene

Reports 12 Annual report 13 Publication of reports

General 14 Power to co-operate etc. with others 15 Protection from actions for defamation 16 Giving of notice 17 Meaning of “Scottish public authority” 18 Interpretation 19 Short title, Crown application and commencement

______

Schedule 1—Scottish Commissioner for Human Rights Schedule 2—Inquiries: supplementary provision as to evidence Schedule 3—Places of detention: powers of entry, inspection and interview

SP Bill 48 Session 2 (2005) †1 †2 Scottish Commissioner for Human Rights Bill 1

ACCOMPANYING DOCUMENTS Explanatory Notes, together with other accompanying documents, are printed separately as SP Bill 48-EN. A Policy Memorandum is printed separately as SP Bill 48-PM.

Scottish Commissioner for Human Rights Bill [AS INTRODUCED]

An Act of the Scottish Parliament to provide for the appointment and functions of the Scottish Commissioner for Human Rights.

Scottish Commissioner for Human Rights 1 Scottish Commissioner for Human Rights

5 (1) There is to be an officer known as the Scottish Commissioner for Human Rights (and referred to in this Act as the “Commissioner”). (2) The Commissioner is to be an individual appointed by Her Majesty on the nomination of the Scottish Parliament. (3) Her Majesty may, on the nomination of the Parliament, appoint individuals to be deputy 10 Scottish Commissioners for Human Rights; and references in this Act to a deputy Commissioner are to any such deputy. (4) There are to be no more than two deputy Commissioners at any time. (5) The Commissioner’s functions may be exercised by a deputy Commissioner if— (a) the office of Commissioner is vacant (unless there is an acting Commissioner 15 appointed under paragraph 5 of schedule 1), or (b) the Commissioner is for any reason unable to act, and while exercising those functions the deputy Commissioner is to be treated for all purposes, except those of paragraphs 4, 6 and 7(a) of schedule 1, as the Commissioner. (6) Schedule 1 makes further provision about the Commissioner and deputy 20 Commissioners.

General functions 2 General duty to promote human rights (1) The Commissioner’s general duty is, through the exercise of the Commissioner’s functions under this Act, to promote awareness and understanding of, and respect for, 25 human rights and, in particular— (a) to encourage best practice in relation to human rights, and

SP Bill 48 Session 2 (2005) †3 2 Scottish Commissioner for Human Rights Bill

(b) to encourage Scottish public authorities to comply with section 6 of the Human Rights Act 1998 (c.42) (which provides that it is unlawful for a public authority to act in a way which is incompatible with Convention rights). (2) In this Act, “human rights” means—

5 (a) the Convention rights within the meaning of section 1 of the Human Rights Act 1998 (c.42), and (b) other human rights contained in any international convention, treaty or other international instrument ratified by the United Kingdom. (3) In deciding what action to take under this Act in pursuance of the Commissioner’s 10 general duty, the Commissioner must have regard, in particular, to the importance of exercising the Commissioner’s functions under this Act in relation to the Convention rights.

3 Duty to monitor law, policy and practice For the purposes of the Commissioner’s general duty, the Commissioner—

15 (a) must keep under review— (i) the law of Scotland, and (ii) the policies and practices of Scottish public authorities, and (b) may recommend changes to the law and to those policies or practices.

4 Information, guidance, education etc. 20 (1) For the purposes of the Commissioner’s general duty, the Commissioner may— (a) publish or otherwise disseminate information or ideas, (b) provide advice or guidance, (c) conduct research, (d) provide education or training.

25 (2) The Commissioner may charge reasonable fees in connection with anything done by or on behalf of the Commissioner under subsection (1). (3) Sums paid to the Commissioner in respect of fees charged under subsection (2) are to be retained by the Commissioner and applied to meet expenses incurred by the Commissioner in doing anything under subsection (1).

30 Inquiries 5 Power to conduct inquiries (1) The Commissioner may, in relation to any matter relevant to the Commissioner’s general duty, conduct an inquiry into the policies or practices of— (a) a particular Scottish public authority,

35 (b) Scottish public authorities generally, or (c) Scottish public authorities of a particular description, in connection with the matter.

†4 Scottish Commissioner for Human Rights Bill 3

(2) Subsection (1) is subject to section 6. (3) The matter in relation to which an inquiry is conducted is referred to in this Act as the “subject matter” of the inquiry. (4) Before taking any step in the conduct of an inquiry, the Commissioner must—

5 (a) draw up— (i) terms of reference for the proposed inquiry, and (ii) a summary of the procedure to be followed in the conduct of the inquiry, (b) give notice of— (i) the proposed inquiry,

10 (ii) its terms of reference, and (iii) the summary of procedure, to each relevant Scottish public authority, and (c) publicise— (i) the proposed inquiry,

15 (ii) its terms of reference, and (iii) the summary of procedure, in such manner as the Commissioner thinks appropriate to bring them to the attention of any other persons likely to be affected by the inquiry. (5) An inquiry is to be conducted in public except to the extent that the Commissioner 20 considers it necessary or expedient that any part of the inquiry should be conducted in private. (6) Otherwise, the procedure to be followed in the conduct of an inquiry is to be such as the Commissioner may determine. (7) In subsection (4)(b), “relevant Scottish public authority” means, in relation to a 25 proposed inquiry, any Scottish public authority— (a) which the Commissioner considers is likely to be required under section 7(1) to give evidence, produce documents or provide information for the purposes of the inquiry, or (b) any of whose members, officers or staff the Commissioner considers is likely to 30 be so required.

6 Restrictions as to scope of inquiry (1) The Commissioner may not, in the course of an inquiry (including the report of the inquiry), question the findings of any court or tribunal. (2) The Commissioner may conduct an inquiry into the policies and practices of a particular 35 Scottish public authority only if— (a) the authority is the only Scottish public authority with functions in relation to the subject matter of the inquiry, or (b) the subject matter of the inquiry is about whether the human rights specified in subsection (6) are being respected by the authority.

†5 4 Scottish Commissioner for Human Rights Bill

(3) The Commissioner may not conduct an inquiry into the policies and practices of any Scottish public authority in relation to a particular case. (4) However, subsection (3) does not prevent the Commissioner taking such policies and practices into account in the course of an inquiry.

5 (5) The Commissioner may conduct an inquiry in relation to the management or operation of a particular institution only if— (a) the institution is the only one of its kind in Scotland, or (b) the subject matter of the inquiry is about whether the human rights specified in subsection (6) are being respected at the institution.

10 (6) The human rights referred to in subsections (2)(b) and (5)(b) are those contained in the following, so far as ratified by the United Kingdom, namely— (a) the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by Resolution 39/46 (10th December 1984) of the General Assembly of the United Nations,

15 (b) the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, done at Strasbourg on 26th November 1987, (c) any protocol to those Conventions, and (d) such other international conventions, treaties or other international instruments as Her Majesty may by Order in Council specify for the purposes of this section.

20 (7) No recommendation to make an Order in Council under subsection (6)(d) is to be made to Her Majesty in Council unless a draft of the Order has been laid before and approved by resolution of the Parliament. (8) In this section, “institution” means a prison, hospital, school, college, care home or other such establishment.

25 7 Evidence (1) For the purposes of an inquiry, the Commissioner may require any person specified in subsection (2) to— (a) give oral evidence, (b) produce documents, or

30 (c) otherwise provide information, relevant to the subject matter of the inquiry. (2) Those persons are— (a) any Scottish public authority, (b) any member, officer or member of staff of a Scottish public authority who, in the 35 opinion of the Commissioner, is able to give the evidence, supply the information or produce the documents. (3) The Commissioner may, in the course of an inquiry, take into account any evidence, information or document which the Commissioner has obtained otherwise than by virtue of a requirement imposed under subsection (1), provided the evidence, information or 40 document is relevant to the subject matter of the inquiry.

†6 Scottish Commissioner for Human Rights Bill 5

(4) A person is not required under this section to answer any question, produce any document or provide any information which the person would be entitled to refuse to answer, produce or provide in proceedings in a court in Scotland. (5) Schedule 2 makes further provision in connection with requirements under subsection 5 (1).

8 Places of detention: powers of entry, inspection and interview (1) For the purposes of an inquiry, the Commissioner may— (a) enter any place of detention for the purpose of exercising any power under paragraph (b) or (c),

10 (b) inspect the place of detention, and (c) conduct interviews in private with any person detained there, with that person’s consent. (2) In this section, “place of detention” means any premises, vehicle or other place in or at which an individual is or may be detained by, or with the authority or consent of, a 15 Scottish public authority. (3) For the purposes of subsection (2), an individual is detained in or at a place if he or she is imprisoned there or otherwise deprived (to any extent) of his or her liberty to leave the place. (4) For the purposes of subsection (1)(c), an interview is in private if it is outwith the 20 hearing of any person involved in the management or control of the place of detention or working at the place of detention. (5) Schedule 3 makes further provision in connection with the exercise of the powers under subsection (1).

9 Report of inquiry 25 (1) After completing an inquiry other than an excepted inquiry, the Commissioner must lay before the Parliament a report of the inquiry. (2) The report must, in particular, include— (a) the Commissioner’s findings as a result of the inquiry, and (b) any recommendations of the Commissioner in the light of those findings.

30 (3) The report must not make reference to the activities of a specified or identifiable person unless the Commissioner considers that it is necessary to do so in order for the report adequately to reflect the results of the inquiry. (4) Before finalising a report containing such a reference, the Commissioner must— (a) provide the person concerned with—

35 (i) a draft of the proposed report, and (ii) an opportunity to make representations concerning the proposed report, and (b) consider any representations made. (5) In subsection (1), “excepted inquiry” means an inquiry the subject matter of which falls within section 6(2)(b) or (5)(b).

†7 6 Scottish Commissioner for Human Rights Bill

10 Confidentiality of information (1) Subsection (2) applies to a person who is or has been— (a) a Commissioner or deputy Commissioner, (b) a member of the Commissioner’s staff, or

5 (c) otherwise an agent of the Commissioner. (2) The person must not disclose any information which— (a) has been obtained by or on behalf of the Commissioner for the purposes of an inquiry, and (b) is not at the time of the disclosure, and has not previously been, in the public 10 domain, unless the disclosure is authorised by subsection (3). (3) Disclosure is authorised for the purposes of subsection (2) only so far as— (a) it is made with the consent of the person from whom the information was obtained,

15 (b) it is necessary for the purpose of enabling or assisting the exercise by the Commissioner of any of the Commissioner’s functions under this Act, or (c) it is made for the purposes of legal proceedings, whether criminal or civil (including the purposes of the investigation of any offence or suspected offence). (4) A person who knowingly contravenes subsection (2) commits an offence.

20 (5) A person guilty of an offence under subsection (4) is liable— (a) on summary conviction, to a fine not exceeding the statutory maximum, or (b) on conviction on indictment, to a fine.

Intervention in civil proceedings 11 Power to intervene 25 (1) This section applies to civil proceedings before a court, except children’s hearing proceedings. (2) The Commissioner may— (a) with leave of the court, or (b) at the invitation of the court,

30 intervene in the proceedings for the purpose of making a submission to the court on an issue arising in the proceedings. (3) The Commissioner may intervene only if it appears to the Commissioner that the issue arising in the proceedings— (a) is relevant to the Commissioner’s general duty, and

35 (b) raises a matter of public interest. (4) An application by the Commissioner for leave under subsection (2)(a) must set out— (a) the issue arising in the proceedings which the Commissioner intends to address, and

†8 Scottish Commissioner for Human Rights Bill 7

(b) a summary of the submission that the Commissioner intends to make. (5) An invitation under subsection (2)(b) must set out the issue arising in the proceedings upon which the court seeks a submission. (6) The court may grant leave for or invite the Commissioner to intervene only if it is 5 satisfied that the intervention of the Commissioner is likely to assist the court. (7) Further provision as to the procedure in any intervention under this section, including in particular provision as to the form that any submission by the Commissioner is to take, may be prescribed by Act of Sederunt. (8) This section is without prejudice to the Commissioner’s capacity to intervene in any 10 proceedings before any court or tribunal under an enactment or in accordance with the practice of the court or tribunal. (9) In subsection (1)— “civil proceedings” includes inquiries instituted under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c.14),

15 “children’s hearing proceedings” means any proceedings on an application made to the sheriff, and any other proceedings before the sheriff court or Court of Session (whether on appeal or otherwise), under any provision of Part II of the Children (Scotland) Act 1995 (c.36) in relation to a children’s hearing, “court” means the Court of Session and sheriff court, both as courts of first 20 instance and appeal, and the Land Court.

Reports 12 Annual report (1) The Commissioner must lay before the Parliament annually a general report on the exercise of the Commissioner’s functions during the year to which the report relates 25 (“the reporting year”). (2) The report must, in particular, include— (a) a summary of any inquiries conducted by the Commissioner during the reporting year, (b) a summary of any other action taken by the Commissioner during that year in 30 pursuance of the Commissioner’s general duty, and (c) a summary of the action which the Commissioner proposes to take in the next reporting year in pursuance of that duty. (3) In preparing a report under this section, the Commissioner must comply with any directions given by the Parliamentary corporation as to the form and content of the 35 report.

13 Publication of reports (1) The Commissioner must arrange for the publication of reports laid by it before the Parliament. (2) The Commissioner may publish other reports on matters relevant to the Commissioner’s 40 general duty.

†9 8 Scottish Commissioner for Human Rights Bill

General 14 Power to co-operate etc. with others (1) The Commissioner may, in the exercise of any of the Commissioner’s functions— (a) consult,

5 (b) act jointly with, (c) co-operate with, or (d) assist, any other person. (2) The Commissioner must seek to ensure, so far as practicable, that any activity 10 undertaken by the Commissioner under this Act does not duplicate unnecessarily any activity undertaken by any other person under any other enactment.

15 Protection from actions for defamation (1) For the purposes of the law of defamation— (a) any statement made by the Commissioner—

15 (i) in conducting an inquiry, (ii) in communicating with any person for the purposes of an inquiry, or (iii) in a report of an inquiry, has absolute privilege, (b) any other statement made by the Commissioner in pursuance of the purposes of 20 this Act has qualified privilege, and (c) any statement made to the Commissioner in pursuance of those purposes has qualified privilege. (2) In subsection (1), “statement” has the same meaning as in the Defamation Act 1996 (c.31).

25 16 Giving of notice (1) Any notice to be given to any person under any provision of this Act must be given— (a) in writing, and (b) by one of the means specified in subsection (2). (2) Those means are—

30 (a) delivering the notice to the person, (b) sending it by registered post or recorded delivery service addressed to the person at— (i) in the case of an individual, the person’s usual or last known address or the person’s place of business or work,

35 (ii) in any other case, the person’s registered or principal office,

†10 Scottish Commissioner for Human Rights Bill 9

(c) sending it to the person by some other means (including electronic means) which the person giving the notice considers likely to cause it to be delivered on the same or next day. (3) A notice which is given by electronic means is to be treated as being in writing if it is 5 received in a form which is legible and capable of being used for subsequent reference. (4) A notice given by a means specified in subsection (2)(c) is, unless the contrary is proved, to be presumed to be delivered on the next working day following the day on which it is sent. (5) In subsection (4), “working day” means any day other than a Saturday, a Sunday or a 10 day which, under the Banking and Financial Dealings Act 1971 (c.80), is a bank holiday in Scotland.

17 Meaning of “Scottish public authority” In this Act, “Scottish public authority” means— (a) any body or office which, or office-holder who, is—

15 (i) a part of the Scottish Administration, or (ii) a Scottish public authority with mixed functions or no reserved functions, and (b) any other person who is a public authority within the meaning of the Human Rights Act 1998 (c.42), but only in so far as the public functions exercisable by 20 the person— (i) are exercisable in or as regards Scotland, and (ii) do not relate to reserved matters.

18 Interpretation In this Act, except where the context requires otherwise—

25 “the Commissioner” means the Scottish Commissioner for Human Rights (appointed under section 1(1)), “Convention rights” has the meaning given in section 1 of the Human Rights Act 1998 (c.42), “deputy Commissioner” means a deputy Scottish Commissioner for Human 30 Rights (appointed under section 1(3)), “human rights” has the meaning given in section 2(2), “inquiry” means an inquiry under section 5, “Parliament” means the Scottish Parliament, “Parliamentary corporation” means the Scottish Parliamentary Corporate Body,

35 “Scottish public authority” has the meaning given in section 17, “subject matter”, in relation to an inquiry, is to be construed in accordance with section 5(3).

†11 10 Scottish Commissioner for Human Rights Bill

19 Short title, Crown application and commencement (1) This Act may be cited as the Scottish Commissioner for Human Rights Act 2005. (2) This Act binds the Crown. (3) This Act (except this section) comes into force on such day as Her Majesty may by 5 Order in Council appoint. (4) An Order in Council under subsection (3) may— (a) appoint different days for different purposes, and (b) contain transitional and transitory provision.

†12 Scottish Commissioner for Human Rights Bill 11 Schedule 1—Scottish Commissioner for Human Rights

SCHEDULE 1 (introduced by section 1(6))

SCOTTISH COMMISSIONER FOR HUMAN RIGHTS

Status

5 1 The Commissioner, deputy Commissioners and the Commissioner’s staff— (a) are not servants or agents of the Crown, and (b) have no status, immunity or privilege of the Crown.

Independence 2 (1) The Commissioner, in the exercise of the Commissioner’s functions, is not to be subject 10 to the direction or control of— (a) any member of the Parliament, (b) any member of the Scottish Executive, or (c) the Parliamentary corporation. (2) Sub-paragraph (1) is subject to section 12(3), paragraphs 8(2)(b), 10, 11(2), (3) and (5) 15 and 14(1) of this schedule and paragraph 5 of schedule 2.

Disqualification 3 (1) A person is disqualified from appointment, and from holding office, as Commissioner or deputy Commissioner if that person is— (a) a member of the House of Commons,

20 (b) a member of the Scottish Parliament, or (c) a member of the European Parliament. (2) A person is also disqualified from such appointment if that person has, in the year preceding nomination, held any of the offices set out in sub-paragraph (1)(a) to (c).

Terms of office and remuneration

25 4 (1) The Commissioner and each deputy Commissioner— (a) holds office for such period not exceeding five years as the Parliamentary corporation, at the time of appointment, may determine, and (b) is eligible for reappointment to the same office (whether the reappointment is for a consecutive period or otherwise) but reappointment for a third period is not 30 competent. (2) A Commissioner and each deputy Commissioner may be— (a) relieved of office by Her Majesty at the officer’s request, or (b) removed from office by Her Majesty if the Parliament so resolves.

†13 12 Scottish Commissioner for Human Rights Bill Schedule 1—Scottish Commissioner for Human Rights

(3) A resolution under sub-paragraph (2)(b), if passed on division, must be voted for by a number of members equivalent to not less than two thirds of the total number of seats for members of the Parliament. (4) The Commissioner and each deputy Commissioner is entitled to—

5 (a) a salary of such amount, and (b) such allowances, as the Parliamentary corporation may determine. (5) The Commissioner and each deputy Commissioner, while holding that office, may not hold any other office or employment without the consent of the Parliamentary 10 corporation. (6) In other respects, the Commissioner and each deputy Commissioner holds office on such terms and conditions as the Parliamentary corporation may determine.

Acting Commissioner 5 (1) Where the office of Commissioner is vacant, the Parliamentary corporation may appoint 15 a person (whether or not a deputy Commissioner or a member of the Commissioner’s staff) to be acting Commissioner until a new Commissioner is appointed. (2) A person who is disqualified from appointment as Commissioner is also disqualified from appointment as acting Commissioner. (3) A person appointed to be acting Commissioner—

20 (a) may be relieved of office at that person’s request, (b) may be removed from office by the Parliamentary corporation by notice given by it, (c) in other respects, holds office on such terms and conditions as the Parliamentary corporation may determine, and

25 (d) while holding that office, is to be treated for all purposes, except those of paragraphs 4, 6 and 7(a), as the Commissioner.

Pensions etc. 6 (1) The Parliamentary corporation may make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a 30 Commissioner or deputy Commissioner and such arrangements may include, in particular— (a) the making of contributions or payments towards provision for such pensions, allowances, or gratuities, and (b) the establishing and administering of one or more pension schemes.

35 (2) References in sub-paragraph (1) to pensions, allowances and gratuities include references to, as the case may be, pensions, allowances or gratuities by way of compensation for loss of office.

†14 Scottish Commissioner for Human Rights Bill 13 Schedule 1—Scottish Commissioner for Human Rights

Validity of actings 7 The validity of any acts of the Commissioner or a deputy Commissioner is not affected by any— (a) defect in the nomination of the Commissioner or, as the case may be, deputy 5 Commissioner, or (b) disqualification from appointment as Commissioner or, as the case may be, deputy Commissioner.

General powers 8 (1) The Commissioner may do anything which appears necessary or expedient for the 10 purpose of, or in connection with, or which appears conducive to, the exercise of the Commissioner’s functions. (2) In particular, the Commissioner may— (a) enter into contracts, and (b) with the consent of the Parliamentary corporation, acquire and dispose of land.

15 Delegation 9 (1) Any function of the Commissioner may be exercised on the Commissioner’s behalf— (a) by any person (whether or not a deputy Commissioner or a member of the Commissioner’s staff) authorised by the Commissioner to do so, and (b) to the extent so authorised.

20 (2) Sub-paragraph (1) does not affect the Commissioner’s responsibility for the exercise of the Commissioner’s functions.

Location of office 10 The Commissioner’s determination of the location of the Commissioner’s office premises is subject to the approval of the Parliamentary corporation.

25 Chief executive and staff 11 (1) The Commissioner is to appoint a chief executive. (2) The Commissioner may, with the consent of the Parliamentary corporation as to numbers, appoint other staff. (3) The appointment of the chief executive and other staff is to be on such terms and 30 conditions as the Commissioner may, with the approval of the Parliamentary corporation, determine. (4) The chief executive is responsible to the Commissioner for the general exercise of the Commissioner’s functions. (5) The Commissioner may, with the approval of the Parliamentary corporation, make 35 arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of staff.

†15 14 Scottish Commissioner for Human Rights Bill Schedule 1—Scottish Commissioner for Human Rights

(6) References in sub-paragraph (5) to pensions, allowances and gratuities include references to, as the case may be, pensions, allowances or gratuities by way of compensation for loss of employment.

Accountable officer

5 12 (1) The chief executive is the accountable officer for the purposes of this paragraph. (2) The functions of the accountable officer are— (a) signing the accounts of the expenditure and receipts of the Commissioner, (b) ensuring the propriety and regularity of the finances of the Commissioner, (c) ensuring that the resources of the Commissioner are used economically, 10 efficiently and effectively, and (d) the duty set out in sub-paragraph (3), and the accountable officer is answerable to the Parliament for the exercise of those functions. (3) Where the accountable officer is required to act in some way but considers that to do so 15 would be inconsistent with the proper performance of the functions specified in sub- paragraph (2)(a) to (c), the accountable officer must— (a) obtain written authority from the Commissioner before taking the action, and (b) send a copy of the authority as soon as possible to the Auditor General for Scotland.

20 Finance 13 The Parliamentary corporation is to pay— (a) the salary and allowances of the Commissioner and any deputy Commissioners, (b) any expenses incurred by the Commissioner in the exercise of the functions of the Commissioner, so far as those expenses are not met out of sums received and 25 applied by the Commissioner under section 4(3), and (c) any sums payable by virtue of paragraph 5(3)(c) to, or in respect of, a person who— (i) is appointed as acting Commissioner, or (ii) has ceased to hold such office.

30 Accounts and audit 14 (1) The Commissioner must, in accordance with such directions as the Scottish Ministers may give— (a) keep proper accounts and accounting records, (b) prepare annual accounts in respect of each financial year, and

35 (c) send a copy of the annual accounts to the Auditor General for Scotland for auditing. (2) The financial year of the Commissioner is—

†16 Scottish Commissioner for Human Rights Bill 15 Schedule 2—Inquiries: supplementary provision as to evidence

(a) the period beginning with the date on which the first Commissioner is appointed and ending with 31st March next following that date, and (b) each successive period of 12 months ending with 31st March. (3) If requested by any person, the Commissioner must make available at any reasonable 5 time, and without charge, in printed or electronic form, the audited accounts, so that they may be inspected by that person.

SCHEDULE 2 (introduced by section 7(5))

INQUIRIES: SUPPLEMENTARY PROVISION AS TO EVIDENCE

10 Requirements to give evidence etc. 1 The Commissioner may impose a requirement on a person under section 7(1) by giving notice to the person specifying— (a) where the person is required to give oral evidence— (i) the time and place at which the person is to attend to give evidence, and

15 (ii) the particular matter or matters about which the person is required to give evidence, (b) where the person is required to produce a document or documents— (i) the document, or types of documents, which the person is to produce, (ii) the date by which it or they must be produced, and

20 (iii) the particular matter or matters in connection with which they are required, (c) where the person is required otherwise to provide information— (i) the nature of the information required, (ii) the date by which it must be provided, and (iii) the particular matter or matters in connection with which the information is 25 required.

Cancellation of requirements notified under paragraph 1 2 (1) A person to whom notice has been given under paragraph 1 may apply to the sheriff for cancellation of any requirement imposed by the notice. (2) On such an application, the sheriff may cancel the requirement if satisfied that the 30 requirement is— (a) unnecessary having regard to the purposes of the inquiry to which the notice relates, (b) undesirable for reasons of national security, or (c) otherwise unreasonable.

†17 16 Scottish Commissioner for Human Rights Bill Schedule 3—Places of detention: powers of entry, inspection and interview

Administration of oaths 3 The Commissioner may— (a) administer an oath to any person giving evidence to the Commissioner for the purposes of an inquiry, and

5 (b) require any such person to take an oath.

Obstruction and contempt 4 (1) Sub-paragraph (3) applies where any person to whom notice has been given under paragraph 1— (a) refuses or fails, without reasonable excuse, to comply with any requirement 10 specified in the notice, (b) refuses or fails, without reasonable excuse, when attending to give evidence as required by the notice— (i) to take an oath on being required to do so under paragraph 3(b), or (ii) to answer any question relevant to any matter specified in the notice, or

15 (c) deliberately alters, suppresses, conceals or destroys any document which the person is required by the notice to produce. (2) Sub-paragraph (3) also applies where the Commissioner considers that any such person as is mentioned in sub-paragraph (1) is likely to do any of the things specified in paragraphs (a) to (c) of that sub-paragraph.

20 (3) Where this sub-paragraph applies, the Commissioner may report the matter to the Court of Session. (4) On such a report, the Court may, after hearing any evidence or representations on the matter, (either or both)— (a) make such order for enforcement as it sees fit,

25 (b) deal with the matter as if it were a contempt of the Court.

Allowances and expenses 5 The Commissioner may pay to persons giving evidence, producing documents or providing information pursuant to a notice given under paragraph 1 such allowances and expenses as it may, with the approval of the Parliamentary corporation, determine.

30 SCHEDULE 3 (introduced by section 8(5))

PLACES OF DETENTION: POWERS OF ENTRY, INSPECTION AND INTERVIEW

Requirement to give notice 1 (1) The powers under section 8(1) may be exercised by the Commissioner in relation to any 35 place of detention only— (a) after notice has been given in accordance with this paragraph, and

†18 Scottish Commissioner for Human Rights Bill 17 Schedule 3—Places of detention: powers of entry, inspection and interview

(b) in accordance with the notice. (2) Notice of intention to exercise the powers must be given by the Commissioner to the person having management and control of the place no later than 14 days before the day on which the Commissioner intends to exercise the powers.

5 (3) The notice must— (a) specify— (i) the place of detention to which it relates, and (ii) the date on and time at which it is intended to exercise the powers, and (b) be accompanied by a copy of the terms of reference for the inquiry in connection 10 with which the powers are to be exercised.

Evidence of authority 2 A person (other than the Commissioner) entitled to exercise any power under section 8(1) (referred to in this schedule as “an authorised person”) must, if required to do so, produce written evidence of that entitlement.

15 Cancellation of notice 3 (1) A person to whom notice has been given under paragraph 1 may apply to the sheriff for cancellation of any power to be exercised by virtue of the notice. (2) On such an application, the sheriff may cancel the power if satisfied that— (a) it is unnecessary to exercise the power having regard to the purposes of the 20 inquiry in connection with which the notice is given, (b) it is undesirable to allow the power to be exercised for reasons of national security, or (c) it is otherwise unreasonable to allow the power to be exercised.

Obstruction and contempt

25 4 (1) Where any person intentionally obstructs the Commissioner or an authorised person acting in the exercise of a power under section 8(1), the Commissioner may report the matter to the Court of Session. (2) On such a report, the Court may, after hearing any evidence or representations on the matter, (either or both)—

30 (a) make such order for enforcement as it sees fit, (b) deal with the matter as if it were a contempt of the Court.

†19 Scottish Commissioner for Human Rights Bill [AS INTRODUCED]

An Act of the Scottish Parliament to provide for the appointment and functions of the Scottish Commissioner for Human Rights.

Introduced by: Cathy Jamieson On: 7 October 2005 Supported by: Robert Brown Bill type: Executive Bill

©

SP Bill 48 Session 2 (2005) †20 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

SCOTTISH COMMISSIONER FOR HUMAN RIGHTS BILL

——————————

EXPLANATORY NOTES

(AND OTHER ACCOMPANYING DOCUMENTS)

CONTENTS

1. As required under Rule 9.3 of the Parliament‘s Standing Orders, the following documents are published to accompany the Scottish Commissioner for Human Rights Bill introduced in the Scottish Parliament on 7 October 2005:  Explanatory Notes;  a Financial Memorandum;  an Executive Statement on legislative competence; and  the Presiding Officer‘s Statement on legislative competence.

A Policy Memorandum is printed separately as SP Bill 48–PM.

SP Bill 48–EN 1 Session 2 (2005) 21 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

EXPLANATORY NOTES

INTRODUCTION

2. These Explanatory Notes have been prepared by the Human Rights and Law Reform Branch on behalf of Robert Brown, Deputy Minister for Education and Young People. Their purpose is to assist the reader of the Bill and to help inform debate on it. As such they do not form part of the Bill and have not been endorsed by the Parliament.

3. The notes should be read in conjunction with the Bill. They are not, and are not intended to be, a comprehensive description of the Bill itself. Wherever a section or schedule, or part of a schedule does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND TO THE BILL

4. The Bill establishes a Scottish Commissioner for Human Rights (SCHR) (and provides for there to be up to two deputy Commissioners). The Commissioner will be independent, with the ability to choose which issues are investigated and reported upon. The Commissioner will be accountable to the Scottish Parliament and will submit annual reports summarising the actions and inquiries undertaken in the previous year.

5. The Commissioner’s general duty, as set out in section 2, is to promote awareness and understanding of, and respect for, human rights. The Bill gives the Commissioner certain other specific functions (see sections 3 to 5 and 11) in support of the general duty. These include: monitoring law, policy and practice; providing information, advice, guidance, and education; carrying out inquiries; and intervening in civil court proceedings.

6. The Commissioner will be able conduct inquiries into general human rights issues, but will not be able to investigate, support or rule on individual cases. The Commissioner will have the ability to require information in support of inquiries and a right of entry to places of detention in certain cases.

7. The Commissioner will deal only with human rights issues relating to devolved matters. However, this remit will include the full range of human rights instruments to which the UK is signatory.

8. The SCHR will be able to liaise with the proposed Commission for Equality and Human Rights (CEHR) for Great Britain, to be created by the Equality Bill at Westminster. The Equality Bill states that the CEHR will not be able to act on human rights in relation to matters that are devolved to the Scottish Parliament, unless it has the consent of the Commissioner.

2 †22 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

COMMENTARY ON SECTIONS

Section 1: Establishment

9. Section 1 establishes the office of the Scottish Commissioner for Human Rights. He or she is to be an individual appointed by Her Majesty on the nomination of the Scottish Parliament.

10. Subsections (3) and (4) allow for up to two deputy Commissioners to be appointed at any time.

11. Subsection (5) allows a deputy Commissioner to perform the Commissioner’s functions in the Commissioner’s absence. In doing so, a deputy Commissioner is to be treated like the Commissioner in all respects (except in relation to terms of office and pensions).

12. Further detail about the Commissioner and the deputy Commissioners is contained in schedule 1 to the Bill.

Section 2: General duty to promote human rights

13. Subsection (1) stipulates that the general duty of the Commissioner is to promote awareness and understanding of, and respect for, human rights. Two particular aspects of this duty are given in paragraphs (a) and (b) of subsection (1).

14. Subsection (1)(a) states that the Commissioner should seek to encourage best practice in relation to human rights. In terms of subsection (1)(b) the Commissioner should encourage Scottish public authorities to abide by section 6 of the Human Rights Act 1998, which states that it is unlawful for a public authority to act in a manner that is incompatible with Convention rights. The term ‘Scottish public authority’ is defined in Section 17.

15. Subsection (2) defines the phrase “human rights” in two parts. “Convention rights” means all Articles and Protocols of the European Convention on Human Rights listed in section 1 of the Human Rights Act 1998. This includes the right to life and the prohibition of torture, slavery and forced labour, amongst other rights. “Other human rights” are (non-Convention) human rights contained in any international instrument (e.g. an instrument enacted by the United Nations, the Council of Europe or the European Union) which have been ratified by the UK.

16. Subsection (3) stipulates that the Commissioner’s priority will be Convention rights. Convention rights are important because, as a result of the Human Rights Act 1998 and the Scotland Act 1998, they are directly enforceable through the domestic courts.

Section 3: Duty to monitor law, policy and practice

17. The Commissioner is required by section 3 to monitor the law of Scotland and the policies and practices of public authorities. This function will allow a process of reviewing and reporting, and the Commissioner will be free to choose which issues he or she examines, provided that those issues are within his or her remit.

3 †23 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

18. This section also empowers the Commissioner to recommend changes to the law and to the policies and practices of public authorities. These recommendations will not be legally binding and there will be no obligation upon public authorities to seek guidance from the Commissioner, nor will there be any compulsion upon public authorities to implement the Commissioner’s recommendations.

Section 4: Information, guidance, education, etc.

19. Subsection (1)(a) and (b) provides that the Commissioner may, in pursuing the general duty set out in section 2(1), publish or otherwise disseminate information or ideas and provide advice or guidance.

20. Under these subsections, the Commissioner could, for example, publish information leaflets, internet resources, or educational materials; send group emails; make presentations at conferences; set up awareness-raising campaigns; issue guidance material; or offer advice through correspondence or by telephone.

21. As detailed in subsection (1)(c), the Commissioner will be able to conduct research. The Commissioner could, for instance, conduct statistical research on court cases with human rights aspects.

22. Subsection (1)(d) provides that the Commissioner can provide education and training.

23. Subsection (2) states that the Commissioner can charge reasonable fees for providing any of the services described in the previous subsection. Any fees paid to the Commissioner are to be put towards the costs of doing the things in paragraphs (a) to (d) of subsection (1).

Section 5: Power to conduct inquiries

24. Subsection (1) states that the Commissioner can conduct inquiries into the policies or practices of a particular Scottish public authority, Scottish public authorities generally or Scottish public authorities of a particular description. Section 6 establishes certain restrictions upon these powers.

25. Subsection (4) sets out the procedure before starting an inquiry, requiring the Commissioner to draw up terms of reference and a summary of the procedure to be followed. The Commissioner must give notice of the proposed inquiry and its terms of reference and procedure to the relevant Scottish public authorities, and publicise such details in a manner that the Commissioner feels is appropriate to bring them to the attention of others affected by the inquiry.

26. ‘Relevant Scottish public authority’ is defined in subsection (7) to mean any public body which the Commissioner believes is likely to be required to give evidence or provide other information, or which has members, officers or staff who are likely to be so required.

4 †24 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

27. Subsection (5) states that inquiries should be conducted in public but reserves to the Commissioner the ability to hear evidence in private.

Section 6: Restrictions as to scope of inquiry

28. Section 6 sets out various restrictions on the power of the Commissioner to conduct inquiries.

29. Subsection (1) states that the Commissioner cannot question the findings of any court or tribunal while conducting an inquiry, including in his or her final report.

30. The remit of the Commissioner restricts inquiries to the general policies and procedures of public authorities, as opposed to individual cases. However, an inquiry into the policies and practices of a particular Scottish public authority may be conducted if it is the only body exercising the functions being investigated, as set down in subsection (2)(a).

31. Additionally, inquiries may be initiated into the policies and practices of a particular Scottish public authority if the specific subject matter of the inquiry is to assess compliance with particular human rights (as defined in subsection (6)). The Commissioner, as previously stated, cannot conduct an inquiry into an individual case, although this does not bar the Commissioner from taking the relevant policies and practices into account during an inquiry.

32. Subsection (5) establishes similar rules for investigating the management and operation of institutions such as prisons, hospitals, schools, colleges and care homes. The Commissioner may only launch an inquiry into an individual institution if the institution in question is the only one of its kind in Scotland, or if the subject matter of the inquiry is to assess compliance with particular human rights (as defined in subsection (6)) at that institution.

33. Subsection (6) details the particular human rights referred to in subsections (2)(b) and (5)(b). These are contained in two of the international human rights instruments to which the UK is signatory. These instruments relate to the prevention of torture and degrading treatment. Subsections (2)(b) and (5)(b) give the Commissioner power to conduct inquiries into particular public authorities and institutions to ensure compliance and good practice in relation to these instruments. Provision is also made for further human rights instruments to be added to the list in subsection (6) by an Order in Council. Such an Order would be subject to affirmative procedure in Parliament.

Section 7: Evidence

34. Subsections (1) and (2) permit the Commissioner to require any Scottish public authority or member, officer or staff member of such an authority to give oral evidence, produce documents or to provide any other form of information deemed relevant to an inquiry.

35. Subsection (3) allows the Commissioner to consider information freely volunteered by public authorities or members of the public, provided that information is relevant to the inquiry.

5 †25 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

36. Subsection (4) states that those required to give evidence by the Commissioner are not required to answer any question, produce any document or provide any information which those persons would be entitled to refuse to (as the case may be) answer, produce or provide in proceedings in a court in Scotland.

37. Further provision in relation to the requirement to provide evidence is made in Schedule 2.

Section 8: Places of detention – powers of entry, inspection and interview

38. This section empowers the Commissioner to enter places of detention during the conduct of an inquiry. In terms of this Bill, ‘places of detention’ means any premises, vehicle or other place where a person can be detained on the authority or consent of a Scottish public authority. Subsection (4) clarifies this point by defining a person as being detained in a place “if he or she is imprisoned there or otherwise deprived (to any extent) of his or her liberty to leave the place”.

39. Specifically, subsection (1) empowers the Commissioner to inspect such places of detention and to conduct private interviews with any person detained there, subject to that person’s consent. Subsection (5) states that an interview is “in private” if it is conducted outwith the hearing of anyone involved in the management or control of, or working at, the place of detention. Schedule 3 makes further provision in relation to these powers.

Section 9: Report of inquiry

40. Upon completion of an inquiry, subsection (1) requires the Commissioner to lay a report of his or her findings before the Parliament. Section 13(1) further stipulates that such reports must be published by the Commissioner.

41. Subsection (2) states that the report must include the Commissioner’s findings and any resultant recommendations. Subsection (3) prohibits reporting upon the activities of a specified or identifiable person, unless the Commission considers that it is necessary to do so in order for the report to adequately reflect the results of the inquiry.

42. If the Commissioner chooses to exercise the capacity to identify individuals then it must furnish those persons with a draft of the proposed report and provide them with an opportunity to make representation concerning the proposed report. The Commissioner must consider any such representations before proceeding with publication.

43. The contents of the Commissioner’s reports are otherwise left to the judgement of the Commissioner.

Section 10: Confidentiality of information

44. This section states that neither the Commissioner, nor any agent of the Commissioner, past or present, shall disclose any information obtained in the course of the Commissioner’s activities unless that information is authorised by subsection (3).

6 †26 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

45. Subsection (3)(a) authorises disclosure of information provided that it is made with the consent of the person who provided it. Subsections (3)(b) and (c) further allow disclosure of information if the Commissioner deems it necessary for the furtherance of his or her functions or if it is made for the purposes of civil or criminal legal proceedings.

46. Subsection (2) identifies information that is subject to these rules. Information which has been obtained by or on behalf of the Commissioner for the purposes of an inquiry should not be disclosed unless at least one of the conditions described above are met. But subsection (2)(b) states that information which has previously been in the public domain is not covered by these restrictions.

47. As stated in subsection (4), a person who knowingly discloses information that should not be made public in terms of this section commits an offence. Subsection (5) details the penalties that can be imposed for an unauthorised disclosure of information.

Section 11: Power to intervene

48. This section describes the process by which the Commissioner may intervene in civil proceedings before a court, with the exception of children’s hearing proceedings. The Commissioner may only make a submission to the court on an issue arising in proceedings which the Commissioner considers are relevant to his or her general duty and raise a matter of public interest.

49. Such interventions can only be made with leave of or at the invitation of the court – the Commissioner has no power to intervene in proceedings without the court’s permission.

50. When applying for leave to intervene, the Commissioner must inform the court of the issue arising in the proceedings which the Commissioner believes to be relevant to his or her general duty. The Commissioner is further required to provide the court with a summary of the submission that he or she intends to make.

51. If the Commissioner is invited to intervene, then the court must set out the issue arising in the proceedings upon which the court seeks a submission. The court may only grant leave for or invite the Commissioner to intervene if it is satisfied that such an intervention is likely to assist the court.

52. Further rules relating to the procedure to be followed in an intervention can be made by the Court of Session in an Act of Sederunt.

53. As stated in subsection (8), this section is without prejudice to any capacity of the Commissioner to intervene in any proceedings before any court or tribunal in terms of any existing enactment or the practice of the court or tribunal.

7 †27 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

Section 12: Annual report

54. In addition to issuing reports upon the completion of its inquiries, the Commissioner must also provide the Parliament with an annual report.

55. The report will include a summary of any inquiries that the Commissioner has conducted in the past year, a summation of its other activities and a synopsis of the action which the Commissioner proposes to take in the next year in pursuance of his or her general duty.

56. Subsection (3) obliges the Commissioner to comply with any directions given by the Parliamentary corporation regarding the form and content of the report. As with reports on inquiries, the Commissioner must publish the annual reports.

Section 13: Publication of report

57. Subsection (1) requires the Commissioner to arrange for the publication of all reports submitted to the Parliament. It is likely that any reports would be published in either electronic format or hard copy.

58. Subsection (2) enables the Commissioner to publish any other report relating to his or her functions.

Section 14: Power to co-operate etc. with others

59. This section empowers the Commissioner to consult, act jointly with, co-operate with or assist any other person. Subsection (2) further states that the Commissioner must attempt to ensure so far as practicable that activity undertaken does not unnecessarily duplicate the work of other statutory agencies with shared interests or remits that overlap with that of the Commissioner.

Section 15: Protection from actions for defamation

60. Subsection (1)(a) provides the Commissioner with absolute privilege for all reports of inquiries, and any other statements and communications in relation to those inquiries. The provision of absolute privilege places a bar on a person’s right to pursue an action of defamation in respect of such statements made by the Commissioner.

61. Subsection (1)(b) provides the Commissioner with qualified privilege for any other statement made in pursuance of the purposes of the Bill, and subsection (1)(c) confers the same protection upon any statement made to the Commissioner for the same purposes. Under qualified privilege the Commissioner can make statements without fear of action provided that such statements are not motivated by malice or intent to injure. ‘Statement’ has the same meaning as in the Defamation Act 1996 (c.31) and therefore includes words, pictures, visual images, gestures or any other method of signifying meaning.

8 †28 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

Section 16: Giving of notice

62. This section sets out the processes that the Commissioner must follow when giving notices.

63. Any notice to be given to any person under any provision of the Bill must be given in writing, and must be either delivered in person or sent by registered post, recorded delivery, email or some other means which the person giving the notice considers likely to cause it to be delivered on the same or the following day. In the case of an individual, notice should be served at the person’s usual or last known address, or the person’s place of business or work. In any other case, notice should be served at the person’s registered or principal office.

64. If notice is given by electronic means such as email, it will be treated as being in writing if it is received in a form which is legible and can be subsequently used for reference. Unless evidence to the contrary is provided, notice given by a means described in subsection (2)(c) is presumed to be delivered on the next working day following the day on which it is sent. In the Bill “working day” means any day apart from a Saturday, a Sunday or an official bank holiday in Scotland.

Section 17: Meaning of “Scottish public authority”

65. This section defines “Scottish public authority”. Any body, office or office holder who is a part of the Scottish Administration is considered a Scottish public authority. Also included is any Scottish public authority (within the meaning of the Scotland Act 1998) with mixed, i.e. devolved and reserved functions, or no reserved functions.

66. Additionally, any other person defined as a public authority within the meaning of the Human Rights Act 1998 is considered a “Scottish public authority” but only insofar as the functions of that person relate to Scotland and do not relate to reserved matters.

Section 19: Short title, Crown application and commencement

67. The Act that results from this Bill will be cited as the Scottish Commissioner for Human Rights Act 2005. It will bind the Crown and, excepting this section, come into force on such a day as Her Majesty may by Order in Council appoint.

68. Such an Order in Council may appoint days for different purposes and contain transitional and transitory provision.

Schedule 1: The Scottish Commissioner for Human Rights

69. Schedule 1 makes detailed provision concerning the status, independence, remuneration, terms of appointment and general powers of the Commissioner. The Schedule also details various administrative and procedural matters.

9 †29 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

70. Paragraph 1 of the Schedule makes clear that neither the Commissioner, nor any deputy Commissioner or staff member, should be regarded as a servant or agent of the Crown or have the status, immunity or privilege of the Crown.

71. The second paragraph states that the Commissioner, in the exercise of his or her functions, is not subject to the direction or control of any member of the Parliament, the Scottish Executive or the Parliamentary corporation. This is qualified because certain other provisions (section 12(3) and paragraphs 8(2)(b), 10, 11(2), (3) and (5), and 14(1) of schedule 1) allow the Parliamentary corporation some control over the Commissioner including the form of the Commissioner’s annual report, the accounting practices of the Commissioner and the location of the Commissioner’s principal office.

72. Paragraph 3 deals with circumstances which would disqualify a person from appointment and holding office as Commissioner or deputy Commissioner. No person may become Commissioner or deputy Commissioner if that person is a member of the House of Commons, the Scottish Parliament or the European Parliament. Persons who have held any of these offices in the year preceding nomination are also disqualified, as would be any Commissioner or deputy Commissioner who was elected to such a post during his or her tenure.

73. Paragraph 4 lists details of terms of office and remuneration for Commissioners and Deputy Commissioners, stating that each may hold office for a period of up to five years and is eligible for reappointment when that period expires. A Commissioner or deputy Commissioner may be appointed for two terms of up to five years each but may not be reappointed for a third period.

74. Paragraph 4 also provides that the Commissioner or deputy Commissioner can be removed from office by Her Majesty at his or her request, or if the Parliament so resolves. In the latter case such a resolution must be voted for by at least two thirds of the total number of MSPs.

75. Paragraph 4 also contains details regarding the Commissioner’s and deputy Commissioner’s salaries, to the effect that each is entitled to a salary and allowances as determined by the Parliamentary corporation.

76. Additionally, no Commissioner or Deputy Commissioner may hold any other office or employment, paid or voluntary, while holding that office, without the consent of the Parliamentary corporation. Other terms and conditions of holding office are to be determined by the Parliamentary corporation.

77. Paragraph 5 establishes the procedure to be followed if the office of the Commissioner is vacant. The Parliamentary corporation may appoint any person to be the acting Commissioner until a new Commissioner is be appointed. The role of acting Commissioner is subject to the same basic strictures relating to appointment as a Commissioner or deputy Commissioner, in that he or she cannot hold any of the offices described in Paragraph 3, nor have held any such office in the preceding year.

10 †30 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

78. Sub-paragraph (3) sets out the terms on which a person can be appointed as acting Commissioner. An acting Commissioner can be relieved from office at that person’s request and may also be removed from office on notice from the Parliamentary corporation. Otherwise, the Parliamentary corporation may determine the terms and conditions by which the acting Commissioner holds office.

79. With the exception of certain provisions relating to terms of office and the validity of actings contained in paragraphs 4, 6 and 7(a), the acting Commissioner is to be treated as the Commissioner.

80. Paragraph 6 makes provision for financial matters including payment of pensions, allowances and gratuities to persons who have ceased to be Commissioners or deputy Commissioners. The Parliamentary corporation has responsibility for arranging such payments. The pensions, allowances or gratuities arranged under this section may be in compensation for loss of office.

81. Paragraph 7 states that no act of the Commissioner or a deputy Commissioner is to be considered invalid on grounds of any defect in his or her nomination, nor by disqualification from appointment as Commissioner or deputy Commissioner.

82. Paragraph 8 empowers the Commissioner to do anything which appears necessary or expedient for the purpose of, or in connection with or conducive to, the exercise of his or her functions. Paragraph 8 also confers upon the Commissioner the specific power to enter into contracts and, with the consent of the Parliamentary corporation, to acquire and dispose of land.

83. The Commissioner can delegate any function to any person he or she authorises to act upon his or her behalf. The Commissioner still retains ultimate responsibility for carrying out his or her functions, whether delegated or not.

84. Paragraph 10 states that the Commissioner’s choice of location for his or her office is subject to the approval of the Parliamentary corporation.

85. Paragraph 11 requires the Commissioner to appoint a chief executive and also allows the Commissioner to appoint other staff on such terms and conditions as the Commissioner determines. The number of staff and their terms and conditions are subject to the approval of the Parliamentary corporation. The chief executive will be responsible to the Commissioner for the general exercise of the Commissioner’s functions.

86. Sub-paragraph 11(5) makes provision for payment of pensions, allowances or gratuities to former staff. This paragraph gives authority to the Commissioner to make arrangements, which may include pensions, allowances and gratuities made in compensation for loss of employment. Approval of such arrangements must be obtained from the Parliamentary corporation.

87. Paragraph 12 sets out the functions of the chief executive as accountable officer and states that he or she is accountable to the Parliament for exercise of those functions. It is the

11 †31 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

duty of the chief executive to ensure that the finances of the Commissioner are kept in good order and that the resources of the Commissioner are used economically, efficiently and effectively. If the chief executive is required to act in a manner that he or she considers inconsistent with these responsibilities, the chief executive must obtain written authority from the Commissioner and send a copy of this to the Auditor General for Scotland.

88. The Parliamentary corporation is responsible for payment of the salary, allowances and expenses of the Commissioner and any deputy Commissioners. The Parliamentary corporation is also responsible for any sums payable to a person who is appointed as acting Commissioner or who has ceased to hold that office.

89. Paragraph 14 requires the Commissioner to keep proper accounts and accounting records, prepare annual accounts for each financial year and send copies of the annual accounts to the Auditor General for Scotland. The Commissioner must comply with any directions given by the Scottish Ministers in relation to these requirements.

90. The Commissioner must make a copy of the audited accounts available, free of charge, to anyone who requests them.

Schedule 2: Inquiries: Supplementary provision as to evidence

91. Paragraph 1 expands upon the ability of the Commissioner to require a person to give evidence. Where oral evidence is required, the Commissioner must give notice specifying the time and place the person should attend. In cases where persons are requested to provide documents or other information, the Commissioner must specify the documents (or type of documents or other information) requested and the date by which they should be produced. In all cases, the Commissioner is required to inform the person in question of the matters to which the request relates.

92. Any person required to give any form of evidence to the Commissioner may apply to the sheriff for cancellation of any requirement imposed by the notice. The sheriff may allow this only if he or she is satisfied that the requirement is unnecessary – i.e. it is unconnected to the matter being investigated, undesirable for reasons of national security or considered by the sheriff to be otherwise unreasonable.

93. Paragraph 3 empowers the Commissioner to administer an oath to any person giving evidence and to require any such person to take an oath.

94. The fourth paragraph allows the Commissioner, following the service of a notice under paragraph 1, to refer uncooperative or obstructive persons to the Court of Session. The Commissioner could take this action where a person refuses or fails to comply with any requirement specified in the notice without reasonable excuse including failing to attend at a hearing, where a person refuses to take an oath when so required or to answer questions relevant to the matter at hand, or where a person deliberately destroys, conceals, alters or withholds documents.

12 †32 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

95. On hearing any evidence or representations on a report of obstruction, the Court of Session may make such an order for enforcement as it deems necessary or deal with the matter as if it were a contempt of the court.

96. In accordance with paragraph 5, the Commissioner can pay allowances and expenses to any individual giving information of any kind in response to a notice under paragraph 1, subject to the approval of the Parliamentary corporation.

Schedule 3: Places of detention: powers of entry, inspection or interview

97. Schedule 3 expands upon the powers of entry, inspection and review granted to the Commissioner in Section 8 and sets out procedures for the exercise of these powers. Paragraph 1 requires the Commissioner to give at least fourteen days‘ notice to the manager of any place he or she intends to inspect or in which he or she wishes to conduct an interview with an incarcerated person. The notice must specify the place of detention which the Commissioner wishes to enter and the date and time at which the Commissioner wishes to attend. The Commissioner must provide with this notice a copy of the terms of reference for the inquiry to which his or her visit relates.

98. The Commissioner may delegate the power to enter places of detention to another person, but paragraph 2 provides that the person must be able to produce evidence that such power has been delegated to him or her.

99. A person who has received notice of the Commissioner‘s intent to exercise the power to enter places of detention can apply to the sheriff under paragraph 3 for cancellation of the Commissioner‘s power to act upon that notice. The sheriff may cancel the power if satisfied that the proposed inspection or interview is irrelevant to achieving the aims of the Commissioner‘s inquiry or is undesirable for reasons of national security. The sheriff can also do so if content that the proposed inspection or interview is otherwise unreasonable.

100. Paragraph 4 allows the Commissioner to report any person intentionally obstructing the Commissioner or authorised person from exercising this power to the Court of Session.

101. After hearing any evidence or representations on the matter, the Court of Session may make such an order for enforcement as it sees fit or may deal with the matter as a contempt of court.

——————————

FINANCIAL MEMORANDUM

INTRODUCTION

102. The costs associated with this Bill will fall upon the Scottish Parliament.

13 33 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

103. These costs will relate primarily to the operations of the Scottish Commissioner for Human Rights, including the running of the Commissioner’s office. It is estimated that these costs will be in the region of £1 million per year. There will however also be costs associated with the establishment of the Commissioner. These will include costs in relation to the process of appointing the Commissioner and Deputy Commissioners, recruiting staff and setting up the Commissioner’s office. These set-up costs, which should be non-recurring, are estimated at around £208,000.

104. These figures are only estimates since the details of the structure and working arrangements of the Commissioner’s office will for the most part be for the Commissioner himself to decide. Decisions on certain matters, such as the number of staff and the location of the Commissioner’s office, will be subject to the approval of the Scottish Parliament Corporate Body (SPCB). The estimated cost figures are based on a number of assumptions about how the Commissioner’s office might be structured and examples of other bodies that fulfil similar roles.

COSTS ON THE SCOTTISH PARLIAMENT

105. The Commissioner will be publicly funded by the SPCB. The Scottish Executive will transfer funding to the Parliament of £1m per year from 2006-07 to meet the costs of the Commissioner.

Commissioner Salaries 106. There is to be a single Scottish Commissioner for Human Rights and up to two deputy Commissioners. The policy presumption is that the post of Commissioner will be a full-time appointment. There is however a degree of flexibility within the Bill as to the full- or part-time nature of Commissioner posts: the Commissioner or a deputy Commissioner will be able to hold another office or other employment if the SPCB agrees.

107. The Commissioner is expected to have a broadly similar status to the Commissioner for Children and Young People and the Freedom of Information Commissioner. These posts are full-time roles promoting good practice and providing information, which attract salaries between £70,000 and £75,000 per year. The Scottish Public Services Ombudsman is the only existing similar statutory body in Scotland which has more than one commissioner or ombudsman. It has a full-time Ombudsman, whose salary is between £70,000 and £75,000 per year, and three part-time deputy ombudsmen, each receiving an annual salary of £25,000. The Children’s Commissioner in Wales has three Deputy Commissioners, each of whom is paid an annual salary of £35,000 to £45,000.

108. If salaries for the Scottish Commissioner for Human Rights and deputy Commissioners follow the models of existing Scottish statutory bodies, it is estimated that the Commissioner would be paid a salary of between £70,000 and £75,000 per year and the deputy Commissioners salaries of between £45,000 and £55,000. The salary differential between the Commissioner and the deputy Commissioners is thought to be justified by the Commissioner’s overall responsibility for the operations of his or her office and likely enhanced public role.

14 †34 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

109. Including 30% for National Insurance and pension contributions, the total cost for the Scottish Commissioner and two deputy Commissioners based on these salary assumptions would be around £208,000 and £240,500.

Recruitment 110. Costs will be incurred in recruiting the Commissioner and any deputy Commissioners, such as the cost of placing adverts for such vacancies in the national press. It is estimated that this could cost between £7,500 and £15,000. However this may vary, depending for instance on whether the vacancies are advertised separately or all at once.

111. One of the initial tasks in setting up the Commissioner’s office will be to recruit staff. Recruitment costs will depend largely on decisions about what staff posts will be needed and the nature and level of skills and experience required for each post. Posts will then need to be advertised and filled. This is likely to require specialist advice and services, most likely from a recruitment consultancy.

112. The experience of the Children’s Commissioner in Wales shows that approximately 10% of the annual budget was spent in the first year on recruitment. If this figure were mirrored in Scotland, the total cost of recruitment would be £100,000.

113. This level of recruitment activity should not be required every year, since it is not anticipated that there will be a high staff turnover. Therefore only a small proportion of this cost needs to be retained as ongoing for this purpose.

Staff 114. It will be for the Commissioner to decide on the number and composition of staff and their terms and conditions of service, subject to the approval of the SPCB. This memorandum therefore cannot prescribe what the staff of the Commission should be, but certain assumptions have been made for budgeting purposes.

115. A number of comparative models from the UK and further afield were considered. These included the Irish Human Rights Commission, which has 11 staff; the Northern Ireland Human Rights Commission, which has 16 full-time equivalent posts; the Children’s Commissioner for Wales, who has 17 staff; and the Scottish Information Commissioner, who has 13 staff. While these bodies are helpful examples in terms of general size and structure, all of them have a role in handling or supporting individual complaints or cases, which can be particularly labour intensive. The SHRC will not have such a role and it would therefore be reasonable to expect that its staff may be slightly smaller than some of the above examples.

116. The Bill includes a provision that the Scottish Commissioner for Human Rights will be required to appoint a Chief Executive. For the purposes of this memorandum, and based on the models described above, we have assumed that the Commissioner’s office will have around 10 staff (including the Chief Executive).

15 †35 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

117. On this basis, and making salary assumptions based on the Scottish Executive’s pay and grading structure, it is estimated that salary costs for staff (including the Chief Executive) would amount to around £350,000 (including pensions and National Insurance contributions). This costing has been conducted on the assumption that all staff will be full-time.

118. It is anticipated that the Commissioner will not be established at the start of the financial year 2006-07. It will be for Parliament to decide when to appoint the Commissioner and deputy Commissioners, but it seems unlikely that they will be appointed before the summer of 2006. Experience suggests that it takes some time for statutory bodies such as the Commissioner to become fully staffed and operational. For the purposes of this memorandum it is therefore assumed that total salary costs in 2006-07 will be approximately half the anticipated full-year total.

119. An additional annual cost of £10,000 has been assumed for staff training.

Rental costs 120. For the purposes of this memorandum it is assumed that the Commission will have one office and that this will be rented. The cost of that office will of course depend on the location, size and nature of the actual premises chosen. The location of the Commission will be a matter for the Commission to decide, subject to the approval of the SPCB. Having considered the experience of other comparable bodies we have allowed around £75,000 per year to cover rental costs. It will probably be necessary for expert property and legal services to be bought in to assist in identifying and securing suitable premises, and it may also be necessary for some works to be done to the chosen property to make it suitable for occupation by the Commissioner and his or her staff. For the purposes of this memorandum we have estimated these costs as being between £75,000 and £100,000.

Cost of office equipment etc 121. The Commissioner’s office will require office furniture, IT equipment, telephones, etc. A substantial cost is likely to be incurred in the first year, although an annual budget will be required to cover costs of maintenance and upgrading. Based on the experience of the Northern Ireland Human Rights Commission a first year cost of between £100,000 and £120,000 has been assumed, with an annual cost of between £5,000 and £10,000 thereafter.

122. There will also be other running costs associated with the Commissioner’s premises, such as utility bills and cleaning costs. There will also be administrative costs for items such as postage, hospitality, purchase of publications and so on. Having considered the experience of other comparable bodies we estimate that these costs are likely to amount to around £80,000 a year.

Travel costs 123. The Commissioner will be responsible for promoting human rights throughout Scotland. The Commissioner, deputy Commissioners and staff are likely to have to attend meetings and events and undertake investigations throughout the country. Additionally, they are likely to travel abroad on occasion to attend meetings and hearings at institutions such as the UN and the Council of Europe, as well as participating in events and observing good practice in other

16 †36 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005 countries. We think it reasonable to allow between £15,000 and £20,000 a year to cover such costs.

Promotion and awareness-raising 124. The overarching role of the Commissioner will be to promote and raise awareness of human rights. It is therefore expected that the Commissioner will undertake a wide range of promotional and awareness raising activities. These might include commissioning or producing guidance publications for public authorities and members of the public; arranging events such as conferences, seminars or workshops; and raising awareness of particular issues through marketing campaigns. We have assumed an annual budget of between £150,000 and £200,000 for such events.

125. Although we have assumed for costing purposes that the Commissioner’s office will not come fully into operation until well into the 2006-07 financial year, we expect that it may wish to devote extra effort to its promotional and awareness-raising activities in its first year of operation in order to highlight the fact of its creation. We have therefore assumed for planning purposes that expenditure in 2006-07 on such activities and also on travel will be at the same level as for subsequent years.

Research 126. The Commissioner may wish to undertake research on key human rights issues. The cost of commissioning research can vary widely. In the Executive’s experience small projects can cost in the region of £10,000 to £15,000 each. Large projects, involving labour intensive surveys or complex analysis, can cost £30,000 to £35,000. A budget of £50,000 has been assumed, on the basis that the Commissioner may be unlikely to want to conduct more than one large research project in the course of a single year. A smaller amount has been assumed for the Commissioner’s first year of operation.

Income 127. The Commissioner is to be able to charge reasonable fees in connection with his or her information-related activities. For instance, the Commissioner may wish to charge for attendance at training seminars. Any income from such fees would be offset against the Commissioner’s expenditure. We have no basis on which to estimate how much income might be generated by this means, and so our estimates of costs do not take account of potential income.

Total costs expected to fall on the Scottish Parliament 128. The table below summarises the estimated costs associated with the Commissioner, based on the figures given in paragraphs 102 - 126 above. Where a range of costs has been given the mid-point of that range is shown in the table.

17 †37 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

2006-07 Subsequent years Staff costs Recruitment of Commissioners (para. 9) 11,000 01 Commissioners’ salaries (para. 8) 112,000 224,000 Recruitment of staff (para. 11) 100,000 6,000 Staff salaries (para. 16) 175,000 350,000 Training (para. 18) 10,000 10,000 Sub-total 408,000 590,000

Office costs Rent (para. 19) 38,000 75,000 Acquisition and conversion (para. 19) 88,000 0 Equipment (para. 20) 110,000 8,000 Running costs (para. 21) 40,000 80,000 Sub-total 276,000 163,000

Functional costs Travel (para. 22) 9,000 18,000 Promotion and awareness-raising (para. 23) 175,000 175,000 Research (para. 25) 25,000 50,000 Sub-total 209,000 243,000 Total 893,000 996,000

129. As stated above, these figures are an example of how the Commissioner’s budget might look. The exact structure of the budget will depend on decisions made by the Scottish Parliament and the Commissioner. These examples are intended to demonstrate why the Executive considers an annual budget in the order of £1 million to be appropriate, rather than to prescribe exactly how such a budget should be spent.

COSTS ON LOCAL AUTHORITIES

130. It is not anticipated that the provisions will impose any direct costs on local authorities. An authority might incur costs in connection with an inquiry by the Commissioner, but it is not possible to estimate these in advance. Such costs would not in any event be recurrent, and would mainly reflect the cost of staff time in providing information to the Commissioner.

131. It is possible that local authorities may incur costs in responding to recommendations or suggestions by the Commissioner to change their policies and practices in respect of human rights. However, the Commissioner will not have any power to direct local authorities to take, or refrain from taking, any action to change their policies and practices; and so local authorities will not be required as a matter of law to incur any expenditure in response to any recommendations or suggestions from the Commissioner. Any such expenditure that local authorities do incur will therefore arise because the authorities choose to incur it rather than through their being under any legal obligation to do so. Similarly, the Commissioner will not be able to directly change the

1 No provision is shown for Commissioner recruitment costs for subsequent years because the Commissioner and deputies will serve terms of up to 5 years and so recruitment will only be an occasional activity.

18 †38 These documents relate to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

substantive law and so any costs incurred by authorities will arise in connection with obligations under existing human rights law.

COSTS ON OTHER BODIES, INDIVIDUALS AND BUSINESSES

132. It is not anticipated that the provisions will impose any direct costs on other bodies, individuals or businesses. Although there might be costs associated with responding to requests from the Commissioner for information in connection with inquiries, these are expected to be marginal and occasional. In any case, the Commissioner will only be able to conduct inquiries into the policies and practices of private bodies to the extent that they fall within the definition of ―public authority‖ in terms of the Human Rights Act 1998. For the same reason, recommendations or suggestions by the Commissioner will usually not apply to private bodies or persons, and so the cost of implementing such recommendations or suggestions should not be an issue.

——————————

EXECUTIVE STATEMENT ON LEGISLATIVE COMPETENCE

133. On 7 October 2005, the Minister for Justice (Cathy Jamieson) made the following statement:

―In my view, the provisions of the Scottish Commissioner for Human Rights Bill would be within the legislative competence of the Scottish Parliament.‖

——————————

PRESIDING OFFICER’S STATEMENT ON LEGISLATIVE COMPETENCE

134. On 7 October 2005, the Presiding Officer (Right Honourable George Reid MSP) made the following statement:

―In my view, the provisions of the Scottish Commissioner for Human Rights Bill would be within the legislative competence of the Scottish Parliament.‖

19 39 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

SCOTTISH COMMISSIONER FOR HUMAN RIGHTS BILL

——————————

POLICY MEMORANDUM

INTRODUCTION

1. This document relates to the Scottish Commissioner for Human Rights Bill introduced in the Scottish Parliament on 7 October 2005. It has been prepared by the Scottish Executive to satisfy Rule 9.3.3(c) of the Parliament‘s Standing Orders. The contents are entirely the responsibility of the Scottish Executive and have not been endorsed by the Parliament. Explanatory Notes and other accompanying documents are published separately as SP Bill 48– EN.

Policy context

2. Since the Second World War, human rights have assumed ever-increasing importance in both the international and domestic contexts. A major step forward in this process was the enacting of the European Convention on Human Rights (ECHR) in 1950, in which the United Kingdom played a major part. Indeed, the UK was one of the first countries to ratify the ECHR, in 1951. The ECHR laid down a number of fundamental rights, such as the right to life and freedom of expression, which the signatory countries bound themselves to respect and so created a Europe-wide framework of rights and freedoms.

3. A wide range of other international human rights instruments has also developed. For instance, a number of instruments have been enacted through the United Nations, such as the UN Convention Against Torture (UNCAT). Another example is the European Convention for the Prevention of Torture (CPT), which came into existence under the auspices of the Council of Europe. At the same time, the generally-recognised concept of human rights has expanded to include issues such as property rights and also to reflect developments in society.

4. A further step in this process took place in 1998 when the ECHR was incorporated into Scots law through the Human Rights Act 1998 and the Scotland Act 1998. The Human Rights Act requires public authorities to comply with the ECHR, while the Scotland Act provides that actions of the Scottish Minister and Acts of the Scottish Parliament that do not comply with the ECHR are unlawful.

5. The incorporation of the ECHR into Scots law meant that the rights set out in it could be enforced through the Scottish courts. Incorporation made it significantly easier for individuals to seek legal redress for alleged breaches of their human rights under the ECHR, which in turn

SP Bill 48–PM 1 Session 2 (2005) 40 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005 meant that ensuring compliance with the ECHR became a major issue for Scottish public authorities. This led to suggestions that Scotland should follow the example of a number of other countries by establishing a human rights commission to improve awareness of, and compliance with, human rights.

6. In March 2000 the Lord Advocate and the then Minister for Justice stated that the Executive was considering the establishment of a human rights commission. This was followed by a formal announcement in June 2000 that the Executive would launch a public debate on the issues involved. Public consultations were held in 2001 and 2003, and the Partnership Agreement of 2003 that set out the Executive’s programme for the period to 2007 included a commitment to establish a human rights commission for Scotland. It is that commitment that the Bill is intended to deliver.

7. The Executive’s belief in the desirability of having a human rights commission for Scotland has been reinforced by the substantial and increasing attention given to human rights in the media and elsewhere. While this has raised the public profile of human rights issues, unfortunately some of the comment has been ill-informed and has created misleading impressions in the minds of people as to what “human rights” actually means, especially in the legal context. The Executive believes that a human rights commission could have a significant impact in dispelling those impressions and, by helping people to understand better what human rights are really about, create a better perception of how “human rights” can benefit them both individually and collectively as well as empowering them by enabling them to assert those rights more effectively. At the same time, a commission should help ensure that public authorities respect human rights not just through monitoring and reporting on compliance but by improving authorities’ awareness of human rights requirements and providing advice on how these might best be met.

8. It should be noted that although previous discussion, and in particular the Executive’s public consultation exercises, has referred to creation of a human rights commission the Bill would establish a Scottish Commissioner for Human Rights (SCHR). The difference does not affect the key issues around the functions, powers and accountability of the proposed officeholder.

The Great Britain Commission for Equality and Human Rights

9. Since the Executive published its proposals to create a human rights commission for Scotland, the UK Government has announced its intention to create a Commission for Equality and Human Rights (CEHR) for Great Britain. That intention is to be implemented by the Equality Bill that is presently before the Westminster Parliament, although the CEHR is not expected to become operational before October 2007. The CEHR is to assume the responsibilities of the existing statutory equality bodies, such as the Equal Opportunities Commission, in relation to enforcing legal requirements under existing and proposed equality legislation and also promoting equality more generally. However, the CEHR is also to have a new role of promoting human rights. The CEHR’s functions and powers in respect of human rights are to be similar to that proposed for the SCHR; but the CEHR’s human rights role in Scotland will be restricted to reserved human rights issues, that is ones for which the UK Government is responsible, while the SCHR will deal with devolved human rights issues.

2 †41 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

10. Notwithstanding the plans to create the CEHR, the Executive still believes it right to proceed with creation of a separate Scottish human rights commissioner. The main reasons for this belief are:  the legal obligations in relation to human rights placed on Scottish public authorities, and in particular on the Scottish Executive and Ministers but also on the Parliament, are more onerous than south of the Border: it therefore seems right to have a distinctive Scottish commissioner to reflect that different legal framework;  the CEHR will be a non-departmental public body accountable to the UK Government. In contrast, the SCHR is to be independent, accountable to the Scottish Parliament and not to the Executive. This reflects the common practice for officeholders with comparable roles in Scotland, such as the Scottish Information Commissioner, the Commissioner for Children and Young People and the Scottish Public Services Ombudsman. It is an approach favoured by the Executive because it ensures that such bodies can be clearly seen to be independent. Dispensing with a separate Scottish human rights commissioner and having all human rights issues, devolved as well as reserved, dealt with by the CEHR would mean that this would be lost; and  since the Scottish Parliament has responsibility for devolved human rights issues it seems right that the officeholder responsible for promoting awareness of and compliance with human rights in the devolved context should be accountable to it, and that the Parliament rather than Westminster should be able to legislate in respect of that officeholder.

11. A point that has been made repeatedly by stakeholders and others following publication of the CEHR proposals is the need to ensure that the CEHR and SCHR will work closely together so as to avoid confusion and unnecessary duplication. This need has been recognised from the outset by the Executive and the UK Government. The CEHR proposals therefore include an explicit expectation that it and the SCHR will enter into a memorandum of understanding to set out how they will co-operate on matters of mutual interest and work together generally.

Consultation

12. The proposals embodied in the Bill have been developed over a lengthy period and with significant public involvement. In March 2001 the Scottish Executive published its consultation paper, Protecting Our Rights: A Human Rights Commission for Scotland? (The consultation document is available on the internet at http://www.scotland.gov.uk/consultations/justice/porhr- 00.asp; while the responses are also available at http://www.scotland.gov.uk/Topics/Justice/Civil/17838/10723.) This included a declaration that the Executive was committed to establishing a ―human rights culture‖ in Scotland, and sought views on whether an independent human rights commission should be established in order to improve protection of human rights in Scotland. It also posed a number of questions about what any such commission ought to look like such as: what its functions should be, whether it ought to have a statutory basis, what its relationship with existing statutory bodies should be, and to whom it should be accountable. 27 3 42 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

13. The consultation paper described the main arguments that had been advanced for establishing a human rights commission for Scotland as being that:  proposals for legislation required more scrutiny in relation to their implications for human rights;  there needed to be more guidance for public authorities and to the public in general on human rights and responsibilities in connection with them;  there should be a sustained campaign to raise awareness of human rights; and  the different legal and political environment in Scotland, especially post-devolution, meant that there should be a specifically Scottish body to meet these needs.

14. About 70 responses were received from a wide range of interested parties including local authorities, equality organisations, human rights lawyers, academics, charities, lobby groups, professional organisations (such as police and sheriffs) and legal organisations. A small number of private individuals also responded. More than 75% of the responses supported the creation of a human rights commission for Scotland, and wanted it to be statutory and accountable to the Scottish Parliament. There was also broad consensus that a commission should conduct pre- legislative scrutiny of proposals, provide guidance to public authorities and conduct promotion, education and awareness-raising work. However, there was less agreement on what its other roles might be, whether creation of a commission would require the remits of existing bodies to be reconsidered, the number of commissioners it should have and who should appoint commissioners. 27  15. Following consideration of the responses, the Executive announced in December 2001 that a human rights commission would be established. A second consultation paper, The Scottish Human Rights Commission, was launched in February 2003 with a one-day conference, Establishing our Rights, in Edinburgh, to allow further discussion of how the Commission could operate in Scotland. The consultation paper set out a number of decisions that the Executive had already taken on what the Commission would look like and sought views on some more detailed issues. 58 responses were received to the second consultation from local government, the non- profit sector, the legal profession, the police, academics, religious groups, professional organisations and private individuals.

16. The second consultation paper is available on the Executive‘s website at http://www.scotland.gov.uk/consultations/justice/shrs-00.asp. All consultation responses which the Scottish Executive has permission to publish can be viewed on the internet at http://www.scotland.gov.uk/Topics/Justice/Civil/17838/18151, while an analysis report of the consultation responses is available at http://www.scotland.gov.uk/library5/social/hrcacr-00.asp.

BILL PROVISIONS

17. The fundamental purpose of the Bill is to create a ―Scottish Commissioner for Human Rights‖. The Commissioner is to be appointed by the Queen on the nomination of the Scottish Parliament and will be accountable to the Parliament, as explained more fully in the Accountability to Parliament section of this Memorandum.

4 43 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

18. The general function of the SCHR is to promote awareness and understanding of, and respect for, human rights. The SCHR is therefore to be a promotional, not an enforcement, office that will work through increasing awareness of human rights with the aim of securing compliance with those rights, not through directing or otherwise requiring as a matter of law public authorities to take or refrain from taking specific measures or actions. The SCHR will also not be empowered to investigate individual complaints: although such complaints may prompt the SCHR to conduct an inquiry in relation to a particular issue, it will not be for the SCHR to reach a view as to whether an individual’s human rights have (or have not) been breached in a particular case. The Executive believes that the existing ability of individuals to seek redress through the courts for alleged breaches of human rights is sufficient to enable them to assert their rights, without adding a separate enforcement mechanism.

Remit – Definition of “human rights” and devolved nature of remit

Policy objectives 19. The SCHR will be a devolved officeholder with a general duty to promote awareness and understanding of, and respect for, human rights. The SCHR’s remit will not be confined to the ECHR but will include all international human rights instruments that the UK has ratified. The Commissioner is to be able to have regard to all such instruments in exercising all of his or her functions.

20. However, the SCHR is to be required in exercising his or her functions to have special regard to the ECHR (“the Convention rights”) because the ECHR is the only international human rights instrument that is enforceable through the Scottish courts. Issues around the ECHR will therefore be of primary concern to the SCHR, although his or her remit will extend to other international human rights instruments that the UK has ratified.

21. Having said this, paragraph 7(2) of Schedule 5 to the Scotland Act 1998 requires Scottish Ministers to observe and implement “international obligations” as well as their specific obligations under the ECHR and Community law. “International obligations” includes other international human rights instruments to which the UK is a party. These include instruments such as the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, the International Convention on Civil and Political Rights, and the International Convention on Economic, Social and Cultural Rights.

22. Some of these other instruments can have a direct impact on Scottish public authorities. For example, the European Convention for the Prevention of Torture requires state parties to allow a committee of experts to visit places of detention in order to assess conditions and practices. The last visit of the European Committee for the Prevention of Torture (ECPT) to Scotland was in May 2003 and it included visits to HMP Barlinnie, Helen Street Police Station in Glasgow and the State Hospital at Carstairs. Similarly, the UN Committee Against Torture (UNCAT) can hold examinations of state parties’ record in complying with the terms of the UN Convention. The last UNCAT examination took place in November 2004 and was attended by a representative of the Scottish Executive. Another example is that the UK recently signed a protocol which gives individuals the right to petition directly the UN Committee for the Elimination of Discrimination Against Women, and similar moves are proposed for other international instruments.

5 †44 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

23. Therefore, while the ECHR is the only international human rights instrument which is directly enforceable in the Scottish courts these other international instruments do place different types of obligations and responsibilities on Scottish public authorities. In particular, authorities’ compliance with these other international standards can be assessed by international committees who, although they have no enforcement powers, regularly publish their findings and so non- compliance can have significant implications for authorities not least in terms of public perception.

24. Even those international instruments which do not involve some kind of monitoring mechanism have considerable value. In ratifying them, the UK Government has accepted the standards they describe as something worth aspiring to. The Scottish Executive shares the commitment to meet these international human rights standards. The SCHR’s remit therefore includes “other human rights” in order to help Scottish public authorities meet and maintain these international standards.

Alternative approaches 25. Some of the responses to the consultation argued that the SCHR’s remit should include reserved matters. As an Act of the Scottish Parliament, a Scottish Commissioner for Human Rights Act cannot create an office with a remit which is wider than the Parliament’s legislative competence. In general, the Scottish Parliament therefore cannot create a commission with a remit that covers reserved matters. An Act of the Westminster Parliament would be required to give the SCHR a remit which covers all reserved matters.

26. Regarding the definition of human rights used in the Bill, many national human rights institutions around the world have remits which are based on rights set out in their enabling legislation or a constitutional document such as a Bill of Rights. There is no direct equivalent to this in either the UK generally or Scotland in particular. Of course, the ECHR is an enforceable part of domestic law through the Human Rights Act and the Scotland Act. However, the Executive believes that it would not be appropriate to restrict the SCHR’s remit to human rights as set out in the ECHR, since this would have prevented the SCHR from drawing on the standards set out in other international instruments, some of which relate to areas not covered by the ECHR. Also, including other international instruments in the SCHR’s remit will allow the Commissioner to participate where appropriate in the monitoring processes associated with organisations such as the UN and the Council of Europe. The Executive therefore believes that the remit set out in the Bill strikes the right balance through being clear and specific but not unduly limited.

Consultation 27. A number of those who replied to the second consultation pressed for the SCHR’s remit to include reserved matters. However, as stated above it would not be possible for the Scottish Parliament to pass legislation creating an office with a remit that includes reserved matters.

28. Most of the consultation responses supported the view that the SCHR should not just focus on advice-provision on Human Rights Act compliance, but should encourage a positive human rights culture. The remainder disagreed or were unsure. Poor understanding and knowledge of general human rights amongst public bodies were seen as a reason for

6 †45 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

concentrating guidance efforts on the Human Rights Act, although the majority of responses agreed that other international human rights instruments should be included in the SCHR’s remit to secure a fuller reflection of current international best practice. A small minority of the responses argued for the SCHR’s remit to be restricted to the ECHR on account of it being the only instrument fully incorporated into Scots law.

Monitoring function (reviewing law, policy and practice)

Policy objectives 29. The Executive views general monitoring and reporting on law and practice as a key function for the SCHR. The UN’s “Paris Principles” and Commonwealth Secretariat’s guidance on national human rights institutions set out best practice guidance for establishing national human rights institutions. They suggest that national human rights bodies should review law and practice on an ongoing basis. The general obligation to review law and practice exists in the remits of several human rights commissions in other jurisdictions.

Domestic legislation 30. The phrase “law and practice” is intended to cover existing pieces of legislation which are on the statute book and existing practices which may be administrative or linked to legislation. Existing law will already have been through a rigorous process of scrutiny either in the UK Parliament or the Scottish Parliament. In addition, the Scottish Executive carried out a comprehensive audit of law, practices and procedures in advance of the Human Rights Act 1998 taking effect. However, the thresholds of human rights compliance change according with the changing views of society and this is reflected in developing jurisprudence both in the domestic courts and at the European Court of Human Rights in Strasbourg. It would therefore be beneficial to allow the SCHR to consider human rights issues relating to existing law and practice in the light of such developments.

31. The monitoring role extends to policy proposals put forward by the Executive once these have been published. The Bill does not, however, create a mechanism which gives the SCHR special access to the Executive’s policy-making process. While it is to be hoped that the SCHR will develop a constructive working relationship with the Executive, giving the SCHR formal, privileged access to the Executive would jeopardise the Commissioner’s perceived independence from Scottish Ministers. The SCHR will however be free to comment in response to the publication of a consultation paper, draft legislation or an announcement. The Commissioner will be free to make his or her comments widely available by publishing and discussing them.

32. The 2003 consultation paper said that advising the Scottish Parliament on legislation after introduction would be a key function of the SCHR. That was supported by the response to the consultation, and remains the Executive’s view. However, the Executive believes that the Parliament’s existing legislative procedures are sufficient to allow the SCHR to perform this function, and so there is no specific provision for this set out in the Bill.

Monitoring key human rights cases and investigations 33. Monitoring legislation at the Parliamentary stage may not provide a complete picture of how well legislation will operate in practice. Some kind of monitoring of human rights cases

7 †46 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

may be valuable in identifying where there may be weaknesses or gaps in the law. A study on the use of human rights legislation in the Scottish courts, commissioned by the Executive from Glasgow, Strathclyde and Stirling Universities, provided useful information on the incidence and nature of human rights challenges. It highlighted a number of difficulties involved in identifying exactly what constitutes a ―human rights case‖ and procedural difficulties in gathering data on cases in the lower courts in particular. The Bill does not specify how intense the SCHR‘s monitoring of human rights cases should be. It will be up to the SCHR to decide how to approach the function of monitoring the law.

Monitoring international human rights standards 34. The UK is party to a number of international human rights instruments. Some of these involve monitoring mechanisms in which the state party is asked to report on its compliance with the terms of the convention or treaty or attend hearings before a monitoring committee. It is common practice for NGOs and other organisations to submit reports to the committees alongside the state party‘s report or in advance of the hearing so that the committee can benefit from a wide range of views on the state‘s compliance. It would be helpful if the SCHR could be involved in this process by making his or her own views known to the monitoring committees. The SCHR will be independent from both government and the NGO community and will therefore be able to provide a helpful alternative perspective on the issues being considered.

35. Monitoring committees invariably publish a list of comments, observations and recommendations following the report or hearing. Progress against these recommendations 27 forms the basis of the next reporting cycle. As an independent human rights expert, it is  envisaged that the SCHR could play a useful role in advising the Executive on addressing the recommendations and monitoring its progress against them.

36. Many of the international monitoring committees encourage national human rights commissions to develop a working relationship with them. This can be of benefit to both the monitoring committees and the state parties as the commissions can monitor and inform the state party of developments in international human rights standards and practice stemming from the activities of the monitoring committees.

Alternative approaches 37. In the second consultation document, the Executive presented two options for how new legislation could be brought to the attention of the SCHR:  the Scottish Parliament could consider amending standing orders to include a new duty to send all legislation that is introduced to the SCHR;  as part of its own administrative procedures, the SCHR would be expected to monitor legislation and decide on his or her own priorities.

38. The first of these would ensure that all legislation would benefit from the SCHR‘s scrutiny as part of the legislative process. However, amending the Parliament‘s standing orders in this way could create an expectation that the SCHR is obliged to offer a view on all legislation before the Parliament. The SCHR may prefer to prioritise his or her workload by commenting only on those proposals that the Commissioner feels raise particularly important human rights

8 47 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

issues. Additionally, the Executive does not favour an approach which could interfere with the legislative process and therefore prefers the second approach. It will still be possible for the SCHR to offer a view on any legislative proposal by giving evidence to committees in the same way as any other person or organisation.

Consultation 39. The majority of the consultation responses agreed that the SCHR should monitor legislation as part of his or her own procedures rather than making it a mandatory part of the legislative process. Many also thought that the Commissioner should be able to determine the degree of priority attached to this role and be involved at earlier stages in the development of potential legislation. Of those who offered further comment, many recommended that the SCHR should automatically be notified of all legislation going through parliament, but should not be under a statutory requirement to comment. The Law Society of Scotland was concerned that “any bureaucratic failure to inform the Commission of the introduction of a Bill should not affect the Bill’s validity once it becomes an Act.”

40. Those who did not support this proposal did so because they feared that the SCHR would be overwhelmed by this task, given the volume of legislation generated. One local authority argued that current arrangements were sufficient and the SCHR’s involvement in the process would create a layer of unnecessary bureaucracy.

Guidance function (information, guidance, education, etc.)

Policy objectives 41. Increasing general awareness so that everyone in Scotland understands their rights, responsibilities, and the meaning of human rights will be central to the critical role the SCHR will play in supporting the development of a human rights culture. The SCHR will decide on his or her own priorities and work-plan, but the Bill sets out a specific function for the SCHR to disseminate information, conduct research, and provide guidance, education and training. It is hoped that one benefit of such activity will be to improve awareness of the benefits of human rights among groups, such as older people, who may in the past not necessarily have seen themselves as being able to benefit from those rights.

42. Providing guidance to public authorities on their obligations under the Human Rights Act 1998, which makes it unlawful for them to act in any manner that is incompatible with ECHR, will be a central and specific function of the SCHR. Research undertaken in 2001 by the Scottish Executive Legal Studies Research Team revealed that many public bodies had only partial knowledge of the Act and did not understand their duties under this legislation. There existed a perception that human rights entailed a general principle of “fair treatment” as opposed to the specific legislative provisions in the Human Rights Act. These findings pointed to the need for a central source of information and guidance. There are also indications that knowledge and understanding of human rights among the private sector and society in general can be equally patchy, although there is less research information about these groups. The quality and nature of media coverage of human rights issues may be of significance in this regard.

43. Again, the Scottish Executive has stressed that the SCHR should set his or her own priorities and workload in relation to this element of its remit. However, it believes that the

9 †48 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

SCHR’s statutory duties should include the provision of guidance on all aspects of human rights in general, albeit with an express focus on the Human Rights Act given its direct relevance in legal terms for public bodies. The Bill therefore makes specific reference to the Convention rights as set out in the Human Rights Act in describing the SCHR’s general duty to promote human rights.

Charging for services 44. The Executive expects that the SCHR will be able to fulfil his or her statutory function to provide information, guidance and education from its core funding. However, the Executive proposes that the SCHR should also be able to charge reasonable fees in connection with providing these services in certain circumstances. This has been done in similar situations in the past. For instance, the Scottish Information Commissioner staged a number of events in 2004 in advance of the Freedom of Information (Scotland) Act 2002 coming into force. Attendance fees for these events were charged at variable rates for private companies, public authorities and non- profit organisations. The SCHR may choose to charge fees on a similar basis to help cover the costs of staging similar significant events.

45. It may be appropriate to charge fees in other situations. For example, should the SCHR provide information, guidance or training to private companies over and above the Commissioner’s statutory duties, he or she could reasonably charge fees for these services rather than pay for them out of public funds. An ability to charge for services need not compromise the independence of the SCHR or create a conflict of interest in relation to the Commissioner’s powers of inquiry. The Commission for Racial Equality is an example of a statutory body that can charge fees for providing advice to both public and private bodies on their obligations, in this case under the Race Relations (Amendment) Act 2000. Its ability to charge fees for such services does not jeopardise its statutory powers of investigation into those bodies.

46. It is important to note that the ability to charge fees is intended to be an option for the SCHR to use if he or she considers it appropriate, not as an expectation that the SCHR should raise his or her own funds in place of the budget allocation from the Parliament.

47. The SCHR may wish to contract externally for services and resources, for instance for delivery of training, in those areas where it is not possible to provide these in-house or where to do so would be less effective, and the Bill would enable him or her to do that. Some human rights commissions in other jurisdictions are able to commission work from other sources or to offer financial support to others who promote specialist human rights activities. Other Scottish statutory bodies, such as the Commissioner for Children and Young People and the Scottish Information Commissioner, have the ability to enter into contracts specified in their enabling legislation.

Alternative approaches 48. It would have been possible to prohibit the SCHR from charging for services, on the grounds that it could compromise his or her independence to do so. However, other statutory bodies can and do charge for services without adversely affecting their independence. The Children and Young People’s Commissioner and the Scottish Information Commissioner are two examples of such bodies.

10 †49 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

49. The alternative to allowing the SCHR to contract externally for services would be to employ a larger number of staff to provide all the fields of expertise that the SCHR may want to utilise. Allowing the SCHR to contract externally for some services will give the SCHR a greater degree of flexibility in deciding his or her priorities.

Consultation 50. The second consultation paper asked whether the SCHR should be able to commission or offer financial support for promotion, education and awareness-raising activities. The vast majority of the responses to this question supported the proposal. The volume of comments supplied in relation this question illustrates the centrality of awareness-raising as a role for the SCHR in fostering a human rights culture. A few bodies pointed out that the SCHR would probably need to contract externally to best use resources, access additional expertise and combine efforts with other organisations, but warned that the SCHR should not become more of a commissioning body than anything else. NGOs, in particular, stated that the SCHR’s efforts in this area should tie-in with work, and exploit existing knowledge and expertise, in their sector

51. A few respondents noted that training should not just be offered to public authorities but to trade unions, private contractors as they increasingly provide public services, and the wider public, as appropriate. Many of the comments underlined the importance to the SCHR of flexibility and the power to set his or her own priorities and to balance obligations in fulfilment of the SCHR’s function in this area. The issue of applying the SCHR’s activity to private bodies was a recurrent theme brought out in responses from varied consultees. It was suggested that the SCHR should be able to charge for the delivery of training to public and private bodies.

52. There was less consensus in the responses on the issue of whether the SCHR should be able to charge for services. About half agreed that the SCHR should, while over a third thought that the SCHR should not. The main reasons given for not allowing the SCHR to charge for services were that to do so could compromise his or her independence and risk the SCHR taking on work to raise income to the detriment of his or her statutory functions. However, those who agreed argued that it would allow the SCHR to act with greater flexibility and provide services to the private sector without placing a significant burden on the Commissioner’s core funding.

Inquiries

Policy objectives 53. The power to conduct inquiries will allow the SCHR to examine areas where failures to comply appear to be occurring in a broad area of public interest and on which there may be a general level of ‘complaint’ by the public. Inquiries will be advertised and will result in published observations and recommendations.

54. The SCHR will be able to initiate an inquiry on his or her own initiative or in response to concerns that have been brought to him or her, albeit not as formal requests from the Scottish Executive or the Scottish Parliament. Neither the Executive nor the Parliament will be under a duty to take the views of the SCHR into account, although they will carry due weight. Nor will they be able to direct the SCHR to conduct an inquiry into a particular issue, although they would of course be able to suggest that such an inquiry might be appropriate.

11 †50 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

55. Examples of human rights bodies elsewhere and of existing ombudsmen and commissioners in this country support the proposal that the SCHR should have powers to access information. Based on the precedent of the Scottish Public Services Ombudsman, the SCHR will be given powers to require the provision of information, documents and testimony. The SCHR will have the power to apply to the Court of Session should a body refuse to comply with such powers.

56. There are international models for human rights bodies with inquiry powers. The UN ‘Paris Principles’ state that a human rights commission should be able to submit its opinions, recommendations, proposals and reports in relation to any violation of human rights which it decides to take up; it should be able to draw the government’s attention to rights violations, making proposals and commenting on the government’s position. In addition, it should be empowered to hear any person and obtain any information or documents necessary for assessing situations falling within its competence. The Commonwealth Secretariat’s guidance on national human rights institutions states that a Commission should be able to independently investigate individual and systemic violations of human rights and submit recommendations to government.

57. The use of inquiries is an established part of international human rights monitoring mechanisms. The European Committee for the Prevention of Torture is able to visit state detention facilities to observe conditions and make recommendations to the state party. The UN Committee Against Torture does not undertake visits, but it does hold public examinations of states’ compliance with the Convention. In both cases, the committee publishes a report of its findings and recommendations. They have no further enforcement powers. This is largely because they are intended to encourage best practice through constructive dialogue with states and publication of shortcomings rather than quasi-judicial enforcement.

Access to places of detention 58. The consultations did not propose that the SCHR be given a statutory power of access to places of detention. However, several of the responses to the consultation did argue that some kind of right of access to premises could be valuable. The power of the European Committee for the Prevention of Torture (ECPT) to enter places of detention was cited as a particular model for the SCHR to follow.

59. Having considered the matter further, and taking account of the consultation responses, the Executive now proposes that the SCHR should have a legal power to obtain access to places of detention for the purposes of an inquiry. There are a number of arguments for conferring such a power on the SCHR. By their nature, places of detention are capable of giving rise to significant human rights issues, as has been shown by the large number of cases in the domestic courts and at the European Court of Human Rights relating to places of detention (especially prisons).

60. Many if not most of those issues are likely to relate to the physical conditions in which persons are held in places of detention. It is felt that use of the powers to obtain documents or other evidence provided for in relation to inquiries would not be sufficient to enable the SCHR properly to ascertain conditions in specific places, since a full picture of conditions can often only be obtained by physical inspection However, by definition places of detention are not open to the public and so there would be the possibility of the SCHR being denied entry to a place of

12 †51 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

detention even though he or she would view obtaining such entry as necessary e.g. as part of an inquiry into prison conditions. A legal power to enter places of detention would therefore allow the SCHR to fully exercise his or her functions in relation to such places.

61. It is hoped that the SCHR would seldom, if ever, have to exercise the right of access in practice. At present bodies such as the Prisons Inspectorate are given access on an informal basis when requested even though they have no such power and this rarely, if ever, gives rise to any problems. However, given the overarching nature of the SCHR’s remit and the importance of the SCHR as a driver for change in public sector policy and practice in relation to human rights, the Executive believes that the SCHR should have a statutory power of access to call upon if required. This would also send a clear message that the SCHR is an important office with a key role in securing compliance with human rights.

62. It is also relevant that it has been proposed that all the human rights commissions in the UK should be nominated as “national preventive mechanisms (NPMs)” under the Optional Protocol to the UN Convention Against Torture (OPCAT). This would involve the SHRC having a monitoring role under the Convention in relation to places of detention. OPCAT is unlikely to come into effect before the end of 2007, but legal powers of access will give the SHRC the necessary powers to ensure that he or she can act as an NPM effectively.

63. Many national human rights institutions do not have a power of access to places of detention, and the two consultation papers did not propose that the SCHR should have such a power. However, the experience of the Northern Ireland Human Rights Commission suggests that such a power may be useful. The Northern Ireland Act 1998 did not give the NIHRC any legal powers of access to places of detention, but the NIHRC believes that this has hampered its ability to fulfil its functions adequately. The NIHRC raised an action for judicial review following the Northern Ireland Office’s decision to deny it access to the Juvenile Justice Centre at Rathgael. The action has since been settled by the NIO agreeing to give the NIHRC access, and the UK Government subsequently announced in December 2004 that the NIHRC will be given a legal right of access to information including access to places of detention. The Bill giving the NIHRC these powers has not yet been published. The conferring on the SCHR of an explicit power of access should avoid such difficulties.

Alternative approaches 64. It would have been possible to give the SCHR a general power of access to premises, rather than just to places of detention. However, the power of access to places of detention has been proposed specifically to support the SCHR’s inquiry role. Access to other types of premises, such as offices of public authorities, would not fulfil the same purpose. It is hard to conceive of any situation where conditions in the offices of, say, an NHS board would be of interest to the SCHR. The information held in those offices may be of interest, but the Bill gives the SCHR legal powers to obtain documents and compel testimony from witnesses, which will allow the SCHR to gain access to the information without the need to enter premises. A broader access to premises would only be useful in allowing the SCHR to force his or her way into an office or other place to seize documents or other material itself. We do not think that this would be an appropriate power for the SCHR, and that the power of access to information in relation to inquiries is sufficient.

13 †52 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

65. Some human rights institutions in other jurisdictions are essentially complaints handling bodies, whose principal role is to investigate, resolve or support human rights challenges. The SCHR will not be empowered to investigate individual cases or support individual cases through the courts. The intention is to create a Commissioner who can successfully promote a human rights culture in Scotland. Allowing the SCHR to investigate individual complaints would probably lead to demands that he or she spend an increasing amount of time and effort on that task, so distracting the SCHR from his or her other promotional roles. In any case, the Human Rights Act 1998 and Scotland Act 1998 already provide a mechanism whereby individuals who feel that their Convention rights have been breached may defend those rights through the domestic courts.

66. It has also been suggested that the SCHR should be able to raise legal actions for alleged breaches of the Convention rights in his or her name. However, the Executive believes that the same objections apply here as to the SCHR handling individual complaints. In any case, under the Human Rights Act (and thus the Scotland Act) a legal action for an alleged breach of a Convention right can only be brought by a victim of that breach. The SCHR would not meet that “victim test”; and that test could only be removed by amending the Human Rights Act which would be outwith devolved competence and so could only be done at Westminster.

67. Another option would have been to give the SCHR enforcement powers to apply sanctions, if, following a report of an inquiry, the body concerned did not act on his or her recommendations. Having again looked at existing bodies and ombudsmen, and with concerns that the SCHR should be independent yet not be perceived as acting like a court, the Executive proposes that the SCHR should not have such enforcement powers. This would not mean that its recommendations and advice could go unheeded, for the SCHR will be able to conduct inquiries in public and the reports of inquiries will be published. Any recommendations of an inquiry will thus be in the public domain and so capable of generating pressure on the relevant authorities to conform, and the Executive believes that this is the best model as the courts are the most appropriate forum for deciding legal disputes.

Consultation 68. There was near universal support in the second consultation for giving the SCHR the ability to conduct inquiries. There was broad support for the SCHR being able to compel the production of evidence in one form of another, with many consultees pointing out that evidence from other jurisdictions suggests that such powers rarely need to be used in practice simply on account of the existence of the authority.

69. On the issue of enforcement powers, about half of the respondents agreed that the SCHR should not have enforcement powers. A substantial minority thought that the Commissioner should have such powers. However, there appeared to be some disagreement over the definition of “enforcement powers” and whether it should include powers in relation to the conduct of investigations as well as or instead of powers to enforce decisions arising from such investigations. Those who supported the proposal noted that enforcement should remain a matter for the courts, and that an enforcement role could be at odds with the SCHR’s advisory role. Others argued that enforcement powers would be necessary to ensure the SCHR’s credibility and he or she should have enforcement powers similar to those of the equality bodies.

14 †53 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

70. There was broad support for the proposal that the SCHR should be required to publish a report after each inquiry. Those who opposed this proposal did so with reference to the possibility that the SCHR will not have enforcement powers or the ability to require a specific remedial action, which raised questions about the efficacy or worthiness of a published report. Only one of those who commented on whether bodies which had been investigated should supply a written reply within a stipulated period did not agree.

71. There was general agreement that inquiries should be conducted in public, in order to foster and maintain public confidence, unless there were pressing reasons for holding the inquiry, or part of the inquiry, in private. The vulnerability and safety of the parties involved would be the main justifications for a private option. For example, one children’s charity argued that, although investigations should generally take place in public, special measures should be put in place for children and young people in giving evidence.

Relationship with courts

Policy objectives 72. The SCHR will be closely involved in examining human rights law as it develops in Scotland, and he or she may also keep in touch with relevant developments in other jurisdictions and in relation to international human rights instruments generally. The Executive considers that it would be helpful to allow the courts access to the SCHR’s expertise in considering cases where human rights issues arise. This would supplement information received by the courts in the normal way and would not in any way be a substitute for submissions by the parties to a case.

73. The Bill therefore gives the SCHR power to intervene in civil proceedings before a court. Such intervention may be at the Commissioner’s request, in which case it is to be entirely at the discretion of the court as to whether to allow any such intervention in a particular case, or at the court’s own request. In either case, the court must first be satisfied that intervention by the SCHR is likely to be of assistance to it. The SCHR’s power will be simply to make a submission to the court where allowed by the court: it will be for the court to decide what, if any, account to take of any such submission. This should enable the court to obtain the benefit of advice from the SCHR where that would assist the court in its consideration of a particular case, while not placing the court under any obligation to allow such an intervention or to follow whatever advice the SCHR may offer.

74. The SCHR’s ability to intervene will only apply to civil proceedings (excluding children’s hearings) and he or she will not be able to intervene in criminal cases.

75. The other statutory human rights bodies in the UK do or will have capacity to advise the courts. The House of Lords has held in re Northern Ireland Human Rights Commission that the Northern Ireland Commission has the “capacity to make submissions on human rights law and practice applicable in Northern Ireland if so permitted or invited by courts or tribunals concerned with issues of such law and practice.” Additionally, the Equality Bill provides the GB Commission on Equality and Human Rights with the capacity to intervene in legal proceedings.

15 †54 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

Alternative approaches 76. Some of the responses to the second consultation suggested that the SCHR should not just be allowed to make submissions to the courts, but that the courts should be under a duty to hear any such submissions. They argued that the courts are as likely as any other public authority to be unaware of human rights issues and it was therefore possible that a judge would refuse an intervention in circumstances where it would be preferable to allow it. However, the purpose of the SCHR is essentially to be promotional and awareness-raising officer. It would not be appropriate for such an officer to interfere with the independence of the courts. The Executive therefore prefers to leave it to the court to decide whether or not to allow an intervention in any given case.

77. Some national human rights institutions have the ability to take test cases in their own name. However, as mentioned above the Human Rights Act contain a “victim test” which mean that the only person who can take a human rights case is the victim of the alleged breach. It is not possible for a person who is not the victim of a breach to raise a case under the Human Rights Act or section 57 of the Scotland Act. The Human Rights Act and the Scotland Act would need to be amended to allow an organisation such as the SCHR to take human rights test cases. As Acts of the Westminster Parliament, it would not be within the competence of the Scottish Parliament to do this, so such a provision cannot be included in this Bill.

Consultation 78. The responses to the consultation generally agreed that the SCHR should be able to advise the courts, but many also pressed for the SCHR to be given the power to take test cases in his or her own name. Those who disagreed with the proposals did so on the grounds that existing mechanisms for appeal and judicial review provide the courts with sufficient opportunity for the courts to address human rights issues and involvement in a case could lead to challenges to the neutrality and credibility as an impartial provider of advice and guidance.

79. Some consultees argued that the SCHR should be able to intervene in criminal as well as civil cases on the grounds that important human rights issues arise in criminal cases as frequently as they do in civil ones, if not more so. While that is true, there is no scope at present in criminal procedure for anyone other than the prosecution or the defence to make submissions to the court. The Executive believes that it would be neither desirable nor practical to allow the SCHR to intervene in criminal cases.

Relationship with other commissions

Policy objectives 80. Human rights affect all areas of public policy and it is inevitable that the SCHR will come into regular contact with other statutory bodies and officeholders. These will include the GB CEHR, the Commissioner for Children and Young People in Scotland and HM Inspector of Prisons among others. The relationship between the SCHR and the CEHR has already been dealt with above, so the remainder of this section deals only with the relationship between the SCHR and other Scottish bodies or officeholders.

16 †55 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

81. The Commissioner for Children and Young People (Scotland) Act was passed in 2003 and in 2004 Professor Kathleen Marshall was appointed as the first commissioner with a remit to promote and safeguard the rights of children and young people. Because human rights covers people of all ages, there will be overlap between the SCHR and the Commissioner for Children and Young People. As with the CEHR, it is proposed that the relationship between the two commissioners be agreed by them in a memorandum of understanding.

82. The SCHR is likely to be interested in issues which fall at least partly within the remit of other bodies such as HM Inspector of Prisons, HM Inspector of Constabulary and the Care Commission. The Executive envisages that, as with the Children’s Commissioner, the relationship with these bodies would best be managed through memoranda of understanding.

Alternative approaches 83. An alternative to basing the relationship of the SCHR with the Children’s Commissioner on a memorandum of understanding would have been to remove children from the remit of the SCHR. However, this would be incompatible with the intention to create a commissioner with a broad remit. Excluding children from the SCHR’s remit could lead to gaps in the protection of the rights of children: the Commissioner for Children and Young People must have regard for the rights set out in the UN Convention on the Rights of the Child (CRC), but children are also entitled to the rights described in other international human rights instruments which are not specified in the Children’s Commissioner’s remit. A possible solution would have been to draft legislation in a way that set out the boundaries between the two bodies, with the Children’s Commissioner having responsibility for the rights described in the CRC and the SCHR responsible for all other rights. Such an arrangement would risk becoming unnecessarily complicated. Basing a relationship between the two bodies on a memorandum of understanding will be more likely to result in practicable working arrangements. It would also be more in the spirit of granting the two commissioners a degree of independence by allowing them to decide between them how best to manage their relationship.

Consultation 84. The relationship with the Commissioner for Children and Young People was specifically mentioned in the second consultation paper. Almost of the consultees agreed that children should be retained within the remit of the SCHR and that the relationship between the two commissioners should be set out in a memorandum of understanding.

Accountability to Parliament

Policy objectives 85. The independence of the SCHR will be important for his or her standing and success. To be independent, the SCHR must be in control of his or her strategic direction and priorities, within the limits set by the statutory remit. This should apply across all of the SCHR’s functions. The SCHR should not be subject to external control or direction in his or her work programme. However, the SCHR must be accountable for the public funds he or she will spend and the manner in which the SCHR carries out his or her statutory functions. Since the SCHR will be a public officeholder, there must also be an appointments process that can offer guarantees of independence and impartiality.

17 †56 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

86. Other commissioners and ombudsmen recently established in Scotland have been made accountable to the Scottish Parliament. This is the case for the Commissioner for Public Appointments in Scotland, the Scottish Public Services Ombudsman, the Scottish Parliamentary Standards Commissioner, the Scottish Information Commissioner, and the Commissioner for Children and Young People. The SCHR will follow this model as the need to be, and be perceived to be, independent from Scottish Ministers will be important to ensure his or her credibility.

87. Accountability to the Scottish Parliament will involve the following:  the SCHR‘s budget being determined by the Scottish Parliamentary Corporate Body (SPCB);  the Scottish Parliament being responsible for appointing the Commissioner and deputy Commissioners. The Parliament would manage the selection process and establish a selection panel. A nomination would be put forward for approval by resolution of the Parliament. If approved, it would be submitted to Her Majesty the Queen for formal appointment; and  the SCHR submitting an annual report and reports of his or her inquiries to the Scottish Parliament. Additional ad-hoc reports could also be submitted from time to time. All of these reports could be the subject of debate in the Scottish Parliament, at the discretion of the Parliament.

Alternative approaches 88. Traditional accountability arrangements for Non-Departmental Public Bodies (NDPBs) involve accountability to Scottish Ministers. The definition of an NDPB is ―a body that carries out certain functions on behalf of government with a degree of independence from Ministers.‖ Under this model Scottish Ministers would retain a greater degree of control over the organisation. This would involve:  Budget determined by Scottish Ministers;  Appointments made by Scottish Ministers;  Annual report made to Scottish Ministers; and  Sponsorship (monitoring role) fulfilled by the Scottish Executive.

89. This model would not necessarily compromise the SCHR‘s independence in practice, but it may imply a closer relationship to government than would be appropriate for this kind of office and so not give the appearance of independence that the Executive and others feel to be important for an office of this nature. Accountability to the Scottish Parliament is a more appropriate and accessible model. MSPs will have the opportunity to hold the body publicly to account. Recent procedures put in place for other Commissioners and Ombudsmen have established this as an acceptable and workable model.

18 57 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

Consultation 90. A considerable majority of the responses to the second consultation agreed that the SCHR should be accountable to the Scottish Parliament, several alluding to the need for independence from the Executive.

Structure – number of Commissioners, etc.

Policy objectives 91. The policy objective is to appoint commissioners who will have a range of expertise and experience allowing them to offer the best possible advice and guidance on human rights issues while being effective and manageable. While broad representation of Scottish society as a whole should be one of the factors considered in making commissioner appointments, it is not intended that commissioners should be appointed principally in order to ensure that particular groups are represented. In addition, it would be preferable not to restrict membership to legal or human rights experts. This could be one of the factors to be weighed up as part of the appointment process, but need not be specified in legislation.

92. Other models emphasise the importance of commissioners having a legal or human rights background. This may be seen as more important where a commission has a strong legal focus on individual cases and investigation. However, it could be argued that the staff can provide the necessary expertise. Staff can provide the expert technical knowledge in support of commissioners, who should themselves focus on taking a strategic approach.

93. Keeping numbers small and manageable would make strategic control and decision making more straightforward and put less pressure on resources. This consideration has informed the decision to provide in the Bill for one Commissioner supported by up to two deputy Commissioners.

94. The policy presumption is that the post of Commissioner will be a full-time appointment. There is however a degree of flexibility within the Bill as to the full- or part-time nature of commissioner posts: the Commissioner or a deputy Commissioner will be able to hold another office or other employment if the SPCB agrees.

Alternative approaches 95. The Paris Principles recommend that the membership of national human rights institutions should reflect many different aspects of civil society by including representatives of NGOs, professional associations, trade unions, universities, parliament and others.

96. Some commissions emphasise the importance of this kind of wide representation. This can result in a large number of commissioners – perhaps 10 or 12. Various combinations can be found. The Northern Ireland Human Rights Commission has one full-time Chief Commissioner and 9 to 12 part-time Commissioners. The Republic of Ireland has one full-time commissioner and 14 part-time commissioners. New Zealand has a Chief Commissioner, a full-time Commissioner for race relations, a full-time commissioner for equal opportunities and five part- time commissioners.

19 †58 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

97. While a large commission does have its attractions, this type of body could be seen as less responsive and payments to a large number of commissioners may put additional pressure on the budget. Furthermore, some institutions with a large number of Commissioners have found that the line between the role of commissioners and staff can become blurred and it can be difficult to maintain a common strategic direction.

98. Other commissions appoint commissioners to cover specific rights areas. Whilst this approach ensures good coverage of key areas, it may not be straightforward to decide on the appropriate subject areas and could again result in a large number of commissioners which could make decision making difficult.

99. Ensuring broad representation of civil society among the commissioners is not necessarily an overriding priority in Scotland. Unlike other states, the SCHR is not being established as part of wider initiatives to overcome deep discord between different communities, as in Northern Ireland or South Africa. The Scottish Executive‘s priority is to ensure that the commissioners include suitably expert and experienced individuals who can devote their energies to improving human rights standards throughout Scotland, rather than representing the views of any given section of society. To that end, the model set out in the Bill provides for up to 3 commissioners, 1 Commissioner and up to 2 Deputy Commissioners, which will be enough to allow for some diversity in the appointments, but small enough to ensure effective decision- making and action.

Consultation 100. This was one of the areas of greatest dissent in the responses to the second consultation. Two fifths of the consultees agreed with the approach described in the consultation; the same number disagreed, offering alternative models and generally arguing for more part-time commissioners; and the remaining fifth said that they did not know whether the proposed approach was preferable or not.

101. Those who favoured having three or four full-time commissioners usually did so on the grounds that a small number of commissioners would be more likely to facilitate consistent decision-making and would be logistically more practicable.

102. A similar proportion of respondents, from across the board of types of organisations, recommended a range of different models, many opting for a larger number of part-time commissioners. Doubt about whether three of four full-time commissioners would serve the aim of being representative of Scottish society was raised repeatedly.

103. However, no single suggested approach recurred across the responses as a predominant, favoured model. Suggestions included:  a single, full-time chief commissioner and 8 to 12 part-time commissioners;  a full-time chief commissioner with 2 full-time deputies and up to 6 part-time commissioners; or  4 full-time commissioners and up to 20 lay commissioners who would receive only expenses.

20 59 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

104. Representatives from the academic and legal sector, professional bodies, and local government were amongst those who advocated a flexible approach in deciding on Commissioner numbers. Many thought that a mix of full-time and part-time individuals would be apt, depending on the priorities set by the SCHR, the type of applications received, and the way in which the SCHR’s role could evolve over time.

EFFECTS ON EQUAL OPPORTUNITIES, HUMAN RIGHTS, ISLAND COMMUNITIES, LOCAL GOVERNMENT, SUSTAINABLE DEVELOPMENT, ETC

Equal opportunities

105. The Bill will create a Commissioner with responsibility for actively promoting a culture of mutual respect for human rights. The Commissioner’s activity will help to improve the delivery of public services in a way that ensures that people are treated with the respect they deserve, regardless of their gender, race, religion, age, disability or sexual orientation. This will be particularly beneficial for those in society who are most vulnerable or disadvantaged.

106. A large number of equality organisations responded to the Executive’s consultations on the proposals to create a human rights commission. These included Age Concern Scotland, Children 1st, Children in Scotland, Disability Agenda, the Disability Rights Commission, Scottish Ethnic Minorities Research Unit, the Equal Opportunities Commission, Help the Aged, HIV Scotland, the National Autistic Society, Save the Children, the Scottish Association for Mental Health, Stonewall Scotland and Youthlink Scotland.

107. The majority of these groups supported the proposal to establish a human rights commission in Scotland, and most broadly agreed with the proposals that were set out in the consultation papers. Many useful comments were made which have been considered by the Executive in drafting the Bill.

Human rights

108. The Scottish Commissioner for Human Rights will be a public authority for the purposes of the Human Rights Act 1998. The Executive is satisfied that the provisions in the Bill are consistent with the European Convention on Human Rights.

109. The primary duty of the SCHR is to encourage best practice and compliance with human rights among public authorities in Scotland. Particular emphasis is placed on the importance of the obligation on public authorities to comply with the terms of ECHR under the Human Rights Act 1998. However, the Bill also includes other international human rights instruments which the UK has ratified in the SCHR’s remit. This will allow the SCHR to draw on wider sources of human rights standards and practice in fulfilling his or her functions.

Island communities

110. There are no apparent implications for island communities.

21 †60 This document relates to the Scottish Commissioner for Human Rights Bill (SP Bill 48) as introduced in the Scottish Parliament on 7 October 2005

Local government

111. No additional duties will be placed on local government by this Bill. Under the terms of the Human Rights Act 1998 all public authorities are required to comply with ECHR in everything that they do. The SCHR will be able to offer advice and guidance to local authorities on how best to ensure compliance with human rights legislation. This may result in local authorities being less susceptible to human rights challenges, although it is also possible that increased public awareness of human rights as a result of the SCHR’s activities could lead to an increase in human rights cases.

Sustainable development

112. The Bill has no implications for sustainable development.

22 †61 SCOTTISH COMMISSIONER FOR HUMAN RIGHTS BILL MEMORANDUM ON DELEGATED POWERS

Purpose

1. As required under Rule 9.4A, this Memorandum has been prepared by the Scottish Executive to accompany the Scottish Commissioner for Human Rights Bill, introduced in the Scottish Parliament on 7 October 2005. It details the provisions in the Bill that confer powers to make subordinate legislation. It describes the persons upon whom the powers are conferred, the form in which the powers are to be exercised, the parliamentary procedure to which the powers are to be subject and why it is considered necessary to delegate the powers. It does not form any part of the Bill and has not been endorsed by the Parliament.

2. A Policy Memorandum, Explanatory Note and Financial Memorandum are printed separately as SP Bill 48–PM and SP Bill 48–EN.

Background to the Bill

3. The Bill seeks to support the aims set out in the Policy Memorandum by creating the office of the Scottish Commissioner for Human Rights. The Bill aims to continue the process of establishing a culture of respect for human rights in Scotland that started with the creation of the Scottish Parliament itself. The responsibilities of the Commissioner will include promotion, education and awareness raising on human rights issues, monitoring and reporting in relation to human rights law and practice and investigating general human rights issues in relation to public policy. The Bill confers upon the Commissioner powers to assist him or her in investigating and monitoring, in taking evidence, requiring information, making interventions in civil court cases and entering places of detention in support of inquiries.

Delegated powers

Section 6(6)(d) Restrictions as to scope of inquiry

Power conferred on: Her Majesty Power exercisable by: Order in Council Parliamentary Procedure: Draft of the Order must be laid before and approved by resolution of the Parliament

4. Section 6(6)(d) confers upon Her Majesty the power to specify international conventions, treaties or other international instruments in addition to those already specified in those subsections for the purposes of subsections (2)(b) and (5)(a) of section 6. The effect of any such addition would be to empower the Commissioner to conduct an inquiry into whether the human rights specified in such added conventions, treaties or instruments are being respected by a particular Scottish public authority or at a particular institution.

Justification for taking this power

5. In general, the Commissioner’s power under section 6 of the Bill to conduct inquiries will not allow him to inquire into the policies and practices of a particular Scottish public authority or institution. This is because such inquiries are intended to be generic and/or sectoral in nature. However, it is wished to enable the Commissioner to participate in

†62 monitoring of UK compliance with international human rights instruments as part of arrangements agreed between the UK and the relevant international institutions. This is because such an institution might wish the Commissioner to carry out compliance monitoring on its behalf instead of, or in addition to, monitoring by the institution itself.

6. At present such monitoring is conducted under the United Nations Convention Against Torture and the European Convention for the Prevention of Torture. Both of those are already specified in section 6(6) of the Bill, and so the Commissioner would be able to conduct inquiries as part of monitoring compliance with those conventions. However, it is possible that the UK might in future ratify other international instruments that have similar monitoring mechanisms, and that it might be wished for the Commissioner to have a role in monitoring compliance with those instruments. The power in section 6(6)(d) would allow the Commissioner to conduct inquiries as part of monitoring compliance with such other instruments.

7. It would have been possible to give the power to specify additional international instruments to the Scottish Ministers. However, the Commissioner is to be independent, and be seen to be independent, from the Scottish Executive and Ministers. Section 6(6)(d) therefore confers the exercise of this power on Her Majesty, with parliamentary scrutiny being delivered through the requirement for any draft Order to be approved by the Parliament. This is felt to be in keeping with international best practice on the accountability of national human rights institutions. Since exercise of the power will effectively extend the Commissioner’s powers, affirmative procedure is considered appropriate.

Section 11(7) – Power to intervene

Power conferred on: The Lords of Council and Session Power exercised by: Act of Sederunt under section 5 of the Court of Session Act 1988 Parliamentary procedure: None

8. Section 11 would allow the Commissioner to intervene in civil cases with the leave of the court or by the invitation of the court. Section 11(7) provides that procedures for any such intervention, including the particular form that any submission by the Commissioner should take, may be prescribed by Act of Sederunt.

Justification for taking this power

9. The ability to intervene in civil proceedings is seen as a significant power of the Commissioner. While such an ability might anyway exist as being implicit in the Commissioner’s functions, the absence of an explicit intervention power in the case of the Northern Ireland Human Rights Commission resulted in the NIHRC being refused leave to intervene in a particular case. The NIHRC then raised legal proceedings, which eventually went to the House of Lords, to assert its power to intervene (in which it was successful). It is therefore thought appropriate to make explicit provision in the Bill to enable intervention by the Scottish Commissioner. Acts of Sederunt are the normal means by which procedural rules regulating various civil legal procedures in Scotland are laid down, and so are the appropriate means for prescribing any procedures that may be thought necessary to govern how the Commissioner would exercise his or her power of intervention in particular kinds of

†63 proceedings. As is the usual practice any such Act of Sederunt will not be subject to parliamentary procedure.

Section 19 – Short title and commencement

Power conferred on: Her Majesty Power exercisable by: Order in Council Parliamentary procedure: None

10. Section 19 provides for Her Majesty by Order in Council to appoint a day when the provisions of the Bill shall come into force. Such an Order may appoint different days for different purposes and include such transitional provision as Her Majesty considers necessary or expedient in connection with the coming into force of the provisions.

Justification for taking this power

11. This power is required to ensure effective commencement of the Bill and to ensure that nothing in this Bill, when enacted, shall affect any legal proceedings already commenced, or any application made to the court, before the Act comes into operation. It was thought inappropriate to confer the power on the Scottish Ministers because of the need to ensure independence from the Executive (see paragraph 7 above). As is the usual practice any such commencement orders will not be subject to parliamentary procedure.

†64 Justice 1 Committee

1st Report, 2006 (Session 2)

Stage 1 Report on Scottish Commissioner for Human Rights Bill

Published by the Scottish Parliament on 23 February 2006

†65 †66 Justice 1 Committee

1st Report, 2006 (Session 2)

CONTENTS

Page Introduction 1 Consultation 1 Scottish Executive consultation 1 Evidence taken by the Committee 2 Background – human rights policy context 3 Historical development 3 Human rights in Scotland 4 A need for a Scottish Commissioner for Human Rights? 6 UK Legislation - Equality Bill 7 Responses to call for written evidence 9 Existing bodies - who currently deals with human rights in 11 Scotland? Public opinion 16 Added value - evidence from the Scottish Executive 17 Committee’s view on whether there is a clear need for a 18 Commissioner Specific issues 20 Duty to monitor law, policy and practice 20 Governance and accountability issues 22 Financial control issues 24 Funding issues 27 A Commissioner or an alternative model 28 Other matters 30 Relationship with the courts 30 Equal opportunities 36 Delegated Powers 36 Financial Memorandum and Policy Memorandum 37 Overall conclusion 37

†67

ANNEXE A – REPORT FROM THE SUBORDINATE LEGISLATION 1 COMMITTEE

ANNEXE B – REPORT FROM THE FINANCE COMMITTEE 2

ANNEXE C – EXTRACTS FROM MINUTES OF JUSTICE 1 9 COMMITTEE

ANNEXE D – ORAL EVIDENCE AND ASSOCIATED WRITTEN 12 EVIDENCE

40th Meeting, 2005 (Session 2), 7 December 2005 12 Written Evidence 12 MORI Scotland

Oral Evidence 24 Scottish Executive Bill Team (see also oral and associated written evidence for 3rd Meeting, 18 January 2006) MORI Scotland

Supplementary Written Evidence 43 MORI Scotland Scottish Executive Bill Team

41st Meeting, 2005 (Session 2), 14 December 2005 46 Written Evidence 46 Disability Rights Commission Equal Opportunities Commission Scotland’s Commissioner for Children and Young People Scottish Human Rights Centre Amnesty International Scotland

Oral Evidence 61 Disability Rights Commission Equal Opportunities Commission Scotland’s Commissioner for Children and Young People Scottish Human Rights Centre Amnesty International Scotland

42nd Meeting, 2005 (Session 2), 21 December 2005 85 Written Evidence 85 Scottish Public Services Ombudsman Dr Rachel Murray, University of Bristol Lord McCluskey

Oral Evidence 92 Scottish Public Services Ombudsman

†68 Dr Rachel Murray, University of Bristol Lord McCluskey

1st Meeting, 2006 (Session 2), 11 January 2006 116 Oral Evidence 116 Rosslyn Noonan, Chief Commissioner, New Zealand Human Rights Commission

2nd Meeting, 2006 (Session 2), 11 January 2006 126 Written Evidence 126 The Law Society of Scotland The Faculty of Advocates

Oral Evidence 130 The Law Society of Scotland The Faculty of Advocates

3rd Meeting, 2006 (Session 2), 18 January 2006 143 Written Evidence 143 Scottish Parliamentary Corporate Body Scottish Executive (see also oral and associated written evidence for 40th Meeting, 7 December 2005)

Oral Evidence 157 Scottish Parliamentary Corporate Body Scottish Executive

Supplementary Written Evidence 190 Scottish Parliamentary Corporate Body Scottish Executive (x2)

Other Written Evidence 219 National Institutions Unit of the Office of the United Nations High Commissioner for Human Rights (OHCHR) Northern Ireland Human Rights Commission

NB: other written evidence received is available on the Parliament’s website, at: http://www.scottish.parliament.uk/business/committees/justice1/inquiries/hrb/j105- hrb-evid-00.htm

†69

†70 Justice 1 Committee

Remit and membership

Remit:

To consider and report on matters relating to the administration of civil and criminal justice, the reform of the civil and criminal law and such other matters as fall within the responsibility of the Minister for Justice, and the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigations of deaths in Scotland.

Membership:

Pauline McNeill (Convener) Marlyn Glen Mr Bruce McFee Margaret Mitchell Mrs Mary Mulligan Mike Pringle Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Clerk to the Committee Callum Thomson

Senior Assistant Clerk Douglas Wands

Assistant Clerk Lewis McNaughton

†71

†72

Justice 1 Committee

1st Report, 2006 (Session 2)

Scottish Commissioner for Human Rights Bill

The Committee reports to the Parliament as follows—

INTRODUCTION

1. The Scottish Commissioner for Human Rights Bill (“the SCHR Bill”) stems from a commitment made in the Scottish Executive Partnership Agreement of 2003 to establish a human rights commission for Scotland. The Bill was introduced to the Parliament on 7 October 2005 by the Minister for Justice, Cathy Jamieson MSP. On introduction, the Parliamentary Bureau referred the Bill to the Justice 1 Committee as lead committee. Under Rule 9.6 of the Standing Orders, it is for the lead committee to report on the general principles of the Bill.

2. The policy memorandum explains that although previous discussion, including two Scottish Executive consultation exercises, has referred to “creation of a human rights commission, the Bill would establish a Scottish Commissioner for Human Rights (“the Commissioner”).”1 The memorandum goes on to state that the difference “does not affect the key issues around the functions, powers and accountability of the proposed officeholder.”2

CONSULTATION

Scottish Executive consultation

3. The Scottish Executive carried out two consultation exercises prior to the drafting of the Bill. The first, published in March 20013 sought views on whether an independent human rights commission should be established in order to improve protection of human rights in Scotland. Following consideration of the responses4, the Executive announced in December 2001 that a human rights commission would be established. A second consultation paper was published in February 20035 to allow further discussion of how the commission could operate in

1 Policy memorandum, paragraph 8 2 Ibid. 3 http://www.scotland.gov.uk/consultations/justice/porhr-00.asp 4 http://www.scotland.gov.uk/Topics/Justice/Civil/17838/10723 5 http://www.scotland.gov.uk/consultations/justice/shrs-00.asp

SP Paper 508 1 Session 2 (2006) †73 Justice 1 Committee, 1st Report, 2006 (Session 2)

Scotland. 58 responses were received by the Executive from local government, the non-profit sector, the legal profession, the police, academics, religious groups, professional organisations and members of the public.6

4. The Executive also, helpfully, published an analysis report7 of the responses received to the second consultation, copies of which were provided to the Committee.

5. The Committee welcomes the consultation exercises carried out by the Scottish Executive prior to the introduction of the Bill and the detailed analysis of the submissions received in response to the second consultation.

Evidence taken by the Committee

6. The Justice 1 Committee issued a call for written evidence on the Bill on 10 October 2005 and received 52 responses. The Committee also heard oral evidence over six sessions which, together with associated written evidence, is included in Volume 2 of the report. Other written evidence received is available on the Parliament’s website. The oral evidence sessions were arranged as follows:

Session 1: 40th Meeting, 2005 (Session 2) 7 December Scottish Executive Bill Team MORI Scotland

Session 2: 41st Meeting, 2005 (Session 2) 14 December Disability Rights Commission Equal Opportunities Commission Scotland’s Commissioner for Children and Young People Scottish Human Rights Centre Amnesty International Scotland

Session 3: 42nd Meeting, 2005 (Session 2) 21 December Scottish Public Services Ombudsman Lord John McCluskey Dr Rachel Murray, University of Bristol

Session 4: 1st Meeting, 2006 (Session 2) 11 January Rosslyn Noonan, Chief Commissioner, New Zealand Human Rights Commission (video conference)

Session 5: 2nd Meeting, 2006 (Session 2) 11 January The Law Society of Scotland The Faculty of Advocates

Session 6: 3rd Meeting, 2006 (Session 2) 18 January Scottish Parliamentary Corporate Body Robert Brown MSP, Deputy Minister for Education and Young People

6 http://www.scotland.gov.uk/Topics/Justice/Civil/17838/18151 7 http://www.scotland.gov.uk/library5/social/hrcacr-00.asp

2 †74 Justice 1 Committee, 1st Report, 2006 (Session 2)

BACKGROUND – HUMAN RIGHTS POLICY CONTEXT

Historical development

7. Following World War II, innovative charters of human rights guarantees were established at both an international and European level. In particular, the Universal Declaration of Human Rights8 adopted in 1948 gave expression to a new global emphasis on the protection of individual liberty and the provision of basic economic and social entitlements. International and regional human rights treaties have proliferated since 1948.

8. These treaties normally can be categorised in terms of one of two broad approaches. First, treaties such as the European Convention on Human Rights (ECHR)9 which entered into force in 1953 are primarily concerned with civil and political rights, that is, those rights which are grounded in Western liberal democratic tradition, and which stress protection for personal integrity, procedural propriety in the determination of civil rights and criminal liability, protection for democratic processes and the promotion of religious tolerance and plurality of belief. Civil and political rights are more readily amenable to judicial enforcement. Indeed, since 1966, when the United Kingdom recognised the right of individuals to bring complaints, challenges to domestic law and practice have been competent before the European Court of Human Rights.

9. Other treaties provide for economic, social and cultural rights, that is, for entitlements to what are considered essential human needs (such as the rights to housing, to minimum standards of income or social welfare provision, to work, to education, and to health care) or for respect for cultural and linguistic traditions. At a European level, for instance, the European Social Charter, the Framework Convention for the Protection of National Minorities and the European Charter for Regional and Minority Languages attempt to enhance social protection and community cohesion. Ensuring state compliance with economic, social and cultural rights tends not to be through judicial means but through a process of state reporting and expert monitoring.

Mechanisms for promoting human rights 10. The importance of ensuring effective compliance with human rights requirements has also led to the emergence of additional mechanisms which seek to encourage greater awareness of and State compliance with human rights responsibilities. At a European level, for example, the European Committee for the Prevention of Torture has the right to enter places of detention and interview detainees in private with a view to preventing ill-treatment. At an international level, the United Nations is developing a similar mechanism. More particularly, the United Nations and the Council of Europe have encouraged the development of National Human Rights Institutions (NHRIs), commissions or ombudsman institutions specifically charged with the duties of promoting and protecting human rights through exercise of a range of educative, advisory and where necessary, adjudicative functions. In large measure, this has been prompted by the realisation that NHRIs can play a positive and critical role in the implementation

8 For further information see http://www.unhchr.ch/udhr/index.htm 9 For further information see http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm

3 †75 Justice 1 Committee, 1st Report, 2006 (Session 2)

and enforcement of human rights responsibilities to ensure greater domestic compliance with responsibilities and thereby in helping create and sustain a genuine ‘human rights culture’ in governmental and public life.

National Human Rights Institutions 11. The Scottish Executive helpfully provided the Committee with a table containing summary information on NHRIs considered by the Scottish Executive in the course of developing its proposals for a Scottish Commissioner for Human Rights.10 The table contained details of 17 NHRIs, many in Europe but also including others from around the Commonwealth, including New Zealand, Canada and India. The Executive stressed that this was not an exhaustive list of such institutions: the International Co-ordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) currently lists 72 institutions as being accredited to it.11

12. It is clear from the information provided that the possible structure for an ICC12 accredited NHRI varies widely. Poland, for example has a sole Commissioner while Ireland, at the other extreme, has 15 Commissioners.

Human rights in Scotland

13. Until the introduction of domestic legislation in 1998, human rights in Scots law were essentially residual - that is, individuals were free to do anything that was not expressly prohibited, rather than enjoying positive entitlements or liberties as in most other constitutional orders. Scottish courts relied upon their own traditions and approaches to civil liberties, and not the European Convention on Human Rights (“the Convention”) even as an informal source of law as an aid to statutory interpretation or in the development of the common law.13 The limitations of this traditional approach to the protection of human rights over time became recognised as more and more individuals turned to the human rights enforcement machinery, including the European Court of Human Rights, in Strasbourg for assistance.

Devolution 14. The devolution settlement placed upon the courts the responsibility of policing the exercise of devolved legislative and executive powers. The Scotland Act 1998 which established the Scottish Parliament and Scottish Executive now requires the judges to determine challenges on the basis of compatibility with Convention guarantees to decisions taken by the Executive and even to legislation enacted by the Parliament. At the same time, the UK Parliament enacted legislation – the Human Rights Act 1998 – which requires all public authorities throughout the UK to respect the guarantees in the European Convention on Human Rights which the United Kingdom has accepted. In other words, for the

10 Scottish Executive, supplementary written evidence, 25 January 2006, Annex B 11 Ibid. 12 International Co-ordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights. The ICC assesses the institution’s compliance with the Paris Principles. 13 For example see Kaur v. Lord Advocate 1981 SLT 322 (Outer House)

4 76 Justice 1 Committee, 1st Report, 2006 (Session 2) first time, individuals have the right to rely directly upon the Convention in domestic courts.

15. These two statutes adopt differing approaches. The Scotland Act 1998 provides that what is termed a ‘devolution issue’ may arise in respect of a question as to the legislative competence of the Scottish Parliament or the executive competence of the Scottish Executive. An Act of the Scottish Parliament is not law insofar as any provision is outside the legislative competence of the Parliament (including, as noted, incompatibility with Convention guarantees). In contrast, the Human Rights Act 1998 requires courts and tribunals ‘so far as it is possible to do so’ to interpret legislation in a way which is in keeping with the Convention, and where it is not possible to do so, the judges can make a ‘declaration of incompatibility’ which, in turn, may prompt amendment of the law to remove the identified difficulty. The Human Rights Act further provides that a public authority cannot act in a manner which is incompatible with the Convention.

16. A human rights challenge may arise in a number of ways in court proceedings (for example, in judicial review proceedings or by the defence in a criminal prosecution). Such challenges may be made under the Human Rights Act, or as a 'devolution issue' under the Scotland Act.

17. In respect of devolution issues, the Judicial Committee of the Privy Council is the final judicial arbiter. A devolution issue which involves a human rights challenge may potentially arise in any court. The Scotland Act provides that (in general) a court may decide the matter itself or may (and in certain cases, must) refer the matter to the Privy Council. If the court decides to dispose of the devolution issue itself, an appeal against the determination will normally lie to a higher court.

Legal challenges 18. To date, there have been only three legal challenges under the Scotland Act to legislation made by the Scottish Parliament (in respect of emergency mental health legislation, regulation of the hunting of wild mammals, and the fixing of punitive elements of life sentences). None was successful. On the other hand, there have been a significant number of challenges to action taken by the Scottish Executive (including decisions taken by the Lord Advocate in his capacity as public prosecutor), and several of these ‘devolution issue’ challenges have succeeded (including, for example, the manner of appointing temporary sheriffs, and the continuation of a criminal prosecution after a concession by the prosecutor that there had been undue delay in the case). Other aspects of Scots law and practice (including the independence and impartiality of reporters in planning cases, aspects of the children’s hearing system, prison disciplinary hearings and ‘slopping-out’ in Scottish prisons) have been considered by the courts.

Parliamentary scrutiny 19. In accordance with the Parliament’s Standing Orders14, each Bill on introduction must be accompanied by a written statement signed by the Presiding Officer to indicate, whether or not in his or her view the provisions of the Bill would be within the legislative competence of the Parliament (including compatibility with

14 Standing Orders Rule 9.3 Accompanying documents

5 †77 Justice 1 Committee, 1st Report, 2006 (Session 2)

the Convention rights). Executive Bills must also be accompanied by a similar written statement signed by the member of the Scottish Executive in charge of the Bill.

20. It is not uncommon for Committees, during the scrutiny of a Bill, to raise questions about the compatibility of particular provisions with Convention rights. While such issues may not arise in relation to all Bills, those concerning criminal justice reforms are more likely to raise questions.

21. The Justice 1 Committee recently considered one such example in relation to the proposed creation of Risk of Sexual Harm Orders (RSHOs) – civil restriction orders designed to stop predatory sex offenders before they are able to commit an offence – which formed one element of the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. In the Policy Memorandum to that Bill, the Executive acknowledged that the proposals raised possible issues in terms of article 8 (right to respect for private and family life) and article 6 (right to a fair trial) of the Convention. The Committee took expert evidence in order to test whether these proposals were indeed compatible with the Convention. In reaching a conclusion in its Stage 1 report15, the Committee recognised the need to protect children from sexual harm and acknowledged the arguments in favour of introducing RSHOs as a preventative tool but stressed the need to balance protection of children with protection of the rights of individuals who may find themselves subject to an application for an RSHO. The Committee sought further assurances from the Executive that the legislation would be held to be Convention compliant if tested. This was further debated at Stage 2.

22. This is just one example of how, during the legislative process, the Parliament already plays an active role in promoting and protecting human rights in Scotland.

A NEED FOR A SCOTTISH COMMISSIONER FOR HUMAN RIGHTS?

23. The Justice 1 Committee’s scrutiny of the SCHR Bill at Stage 1 has been carried out from the basis of a firm commitment from all Members to ensure the continuing protection of human rights in Scotland. The Committee considers that Scotland has had a good track record in this respect both prior to, and since, the passage of the Human Rights Act and Scotland Act in 1998. In scrutinising the Bill, therefore, the Committee has concentrated particular attention on the question of what added value the people of Scotland would derive from the creation of a specific officeholder, a Scottish Commissioner for Human Rights, charged with promoting awareness and understanding of, and respect for, human rights.

24. The Policy Memorandum stated that since the Executive published its proposals to create a human rights commission for Scotland, the UK Government had announced its intention to create a Commission for Equality and Human Rights (CEHR) for Great Britain. The CEHR will be implemented by the Equality Bill which has recently completed its passage through the UK Parliament. The

15 For further information see: http://www.scottish.parliament.uk/business/committees/justice1/reports-05/j1r05-05-vol01-00.htm

6 †78 Justice 1 Committee, 1st Report, 2006 (Session 2)

CEHR will assume the responsibilities of the existing statutory equality bodies such as the Equal Opportunities Commission but will also have a new role of promoting human rights in relation to reserved human rights issues.16 The role of the CEHR and its relationship to the proposed Scottish Commissioner for Human Rights is discussed below.

UK Legislation - Equality Bill

25. The Equality Bill proposes the creation of a CEHR for Great Britain (Northern Ireland has its own arrangements).17 The main purposes of the CEHR are, firstly, to promote equalities and human rights and secondly to enforce equalities law.

26. As part of the legislative process, the Equality Bill was also the subject of a Sewel motion18, considered by the Scottish Parliament’s Equal Opportunities Committee on 13 September 200519 and subsequently agreed to by the Parliament as a whole on 26 October 2005.

27. The Sewel motion related to both equal opportunities and human rights aspects of the Equality Bill. Equal opportunities are in principle reserved to the UK Parliament but the promotion of equal opportunities is an exception and is devolved to the Scottish Parliament. Consequently, the new duty in the Equality Bill on Scottish public authorities to promote gender equality was the main equal opportunities aspect of the Sewel motion.

28. Human rights as a topic is neither reserved nor devolved. It depends on whether the underlying subject matter is reserved or devolved, e.g. a human rights issue arising in the context of criminal justice is usually devolved. Because the Equality Bill provides that the CEHR will be able to act on occasion in relation to human rights issues arising in relation to devolved matters (see below) this was the other main aspect of the Sewel motion.

The CEHR and devolved matters 29. It is intended that the CEHR’s role in Scotland will usually be limited to human rights issues on reserved topics.20 However, for equality issues it will have a role in relation to both reserved and devolved matters. Clause 7 of the Equality Bill potentially prohibits the CEHR from taking action in relation to human rights issues if the Scottish Parliament has legislative competence to enable a person to take action of that kind in relation to that matter. Scottish Executive officials confirmed that clause 7 was drafted in this way, i.e. without explicit reference to a Scottish Commissioner, as assumptions could not be made that there would be such an individual.21 However, this wording does have interesting consequences.

30. Clause 7 provides that the CEHR will be able to take action on human rights issues arising in relation to devolved matters if it obtains the consent of—

16 Policy Memorandum, para 9 17 Northern Ireland has a Human Rights Commission with a remit in relation to reserved and devolved matters. 18 For further information see http://www.scotland.gov.uk/Resource/Doc/923/0018427.pdf 19 http://www.scottish.parliament.uk/business/committees/equal/or-05/eo05-1202.htm#Col1082 20 Explanatory Notes to the Equalities Bill [HL], para 335. 21 Official Report, Justice 1 Committee, 7 December 2005; c 2446

7 †79 Justice 1 Committee, 1st Report, 2006 (Session 2)

“a person established by Act of the Scottish Parliament whose principal duties relate to human rights and are similar to any of the CEHR’s duties in relation to human rights” [paraphrasing from the Bill]22

31. So, if a Scottish Commissioner [or other body or person who has that role] is created then there is not an absolute prohibition on the CEHR acting in relation to devolved matters. However, if a Scottish Commissioner is not created there is an absolute prohibition on the CEHR acting in relation to devolved matters.23

Structure of CEHR reflecting devolution 32. In relation to the composition and structure of the CEHR, the Equality Bill also makes certain provisions intended to reflect the devolution settlement, including:

• the appointment of one commissioner (of the 10 – 15 commissioners who will be appointed) with knowledge of Scottish conditions (schedule 1, paras 1 and 2)

• the creation of a ‘Scotland Committee’ who will advise the CEHR on Scottish issues and who the CEHR must consult before taking any action likely to affect Scotland (schedule 1, paras 16, 19 and 20)

• the power of the CEHR (through the Scotland Committee) to give advice to Scottish Ministers about existing or proposed law (clause 11 and schedule 1, para 22)

• the requirement that the CEHR sends its annual report to the Scottish Parliament (clause 32)

33. The UK Government has decided that the office of the CEHR in Scotland will be in Glasgow.24

Equality vs. human rights role 34. As noted earlier in this report, the CEHR will assume the responsibilities of the existing statutory equality bodies - the Equal Opportunities Commission, the Disability Rights Commission and the Commission for Racial Equality. In addition, the new CEHR will also have a general duty to encourage and support the development of a society in which “there is respect for and protection of each individual’s human rights.”25

35. In oral evidence, Scottish Executive Bill team officials suggested that the bulk of the work of the CEHR would be directed at enforcement of equality legislation rather than promotion of human rights.26

22 Scottish Executive, written evidence, 16 December 2005, p 1. 23 Ibid, p 2. 24 For further information see http://www.womenandequalityunit.gov.uk/cehr/ 25 Equality Bill [HL], clause 3(b) 26 Official Report, Justice 1 Committee, 7 December 2005, c 2429

8 †80 Justice 1 Committee, 1st Report, 2006 (Session 2)

Extension of CEHR powers to include devolved human rights 36. The Committee considered whether it would have been possible to deliver the functions of the proposed Scottish Commissioner via an enhanced role for the CEHR. Had the Equality Bill been structured differently, and subject to consent from the Scottish Parliament, it would have been possible to allow the CEHR to act in relation to both devolved and reserved matters.

37. When asked what would happen if the Scottish Parliament did not pass the SCHR Bill, Executive officials explained—

“The wording in the Equality Bill does not refer explicitly to a Scottish commissioner for human rights, because no such commissioner exists. If I may paraphrase, it refers to a person or body empowered by the Scottish Parliament to have a human rights remit. It is for the Parliament to decide whether there should be such a specifically Scottish person or body. As I mentioned, the GB commission cannot take action in relation to devolved human rights issues without the consent of that person or body. If the bill were not enacted and there were no Scottish commissioner, there would be no body with a remit in respect of devolved human rights matters in Scotland that was equivalent to the remit that the GB commission would have in relation to reserved matters.”27

38. The Committee acknowledges that the Equality Bill was deliberately drafted in such a way as to leave a gap in relation to devolved human rights in Scotland. This was done in anticipation of the creation of the Scottish Commissioner via an Act of the Scottish Parliament. As passage at Westminster is almost complete, there is now no possibility of amending the Equality Bill. It would require fresh primary legislation at Westminster, and legislative consent from the Scottish Parliament, in order to extend the powers of the CEHR to include devolved human rights.

39. The Committee believes that as the Scottish Parliament has responsibility for the promotion and protection of human rights in all devolved matters, it is right that the Scottish Parliament should determine how best to structure any office created to consider such matters.

Responses to call for written evidence

40. The majority of written submissions to the Committee were strongly in favour of the establishment of a Scottish Commissioner for Human Rights. These expressions of support were based both on principle and in terms of likely practical outcomes. A commonly expressed view was that it would be expedient to establish a Commissioner given international developments and particularly recent developments elsewhere in the UK. This viewpoint was expressed simply by the Faculty of Advocates, “given the intention to establish [the CEHR] with powers relating to ‘reserved matters’, and the existence of the Northern Ireland

27 Official Report, Justice 1 Committee, 7 December 2005, c 2446-47

9 †81 Justice 1 Committee, 1st Report, 2006 (Session 2)

Commission for Human Rights, it would seem anomalous were there not to be an equivalent body in Scotland, addressing devolved issues”.28

41. The positive outcomes which respondents envisaged in terms of ‘added value’ can be summarised as:

• providing positive assistance to the Scottish Executive, Scottish Parliament and public authorities in ensuring compliance with Convention rights29 (and further improving the quality of Scottish parliamentary legislation)30;working with the judiciary to raise awareness of the letter and spirit of human rights enactments31; and more generally, proactively raising awareness of human rights and the sharing of best practice in the public sector.32

• helping promote a positive ‘human rights culture’ in Scottish society33 by providing a purpose-designed organisation with sufficient responsibility, powers and resources34; and one which is also able to address misconceptions as to the nature / content of ‘human rights’35 (by means of, for example, publishing accessible literature on human rights;36 and ensuring that the different legal, cultural, educational and social context of Scotland is considered in human rights implementation;37 and above all, by an emphasis upon the provision of training and guidance).38

• monitoring compliance and highlighting deficiencies in current law and practice39 through, for example, identifying positive obligations arising out of international treaty obligations (such as the Convention on the Elimination of Discrimination against Women)40 and providing direct information to international and European human rights scrutiny bodies.41

• helping individuals to assert their rights more effectively (either in an unspecified manner; or – possibly – by taking cases directly; 42 or by third party interventions43or by providing advice to, e.g. voluntary and community organisations who in turn could assist individuals).

28 Faculty of Advocates 29 Amnesty International Scotland; Scottish Enterprise 30 UNISON 31 Equal Opportunities Commission 32 Association of Scottish Police Superintendents; UNISON; Law Society of Scotland; Assn of Chief Police Officers in Scotland; Youthlink Scotland 33 Law Society of Scotland; Scottish Refugee Commission; Royal Society of Edinburgh 34 Equal Opportunities Commission 35 Amnesty International Scotland 36 Glasgow Council for the Voluntary Sector 37 Amnesty International Scotland; Royal Society of Edinburgh; Equal Opportunities Commission 38 Scotland’s Commissioner for Children and Young People 39 Amnesty International Scotland 40 Scotland’s Commissioner for Children and Young People 41 Amnesty International Scotland; Scottish Refugee Commission 42 Humanist Society; Save the Children 43 Glasgow Council for the Voluntary Sector

10 †82 Justice 1 Committee, 1st Report, 2006 (Session 2)

42. Many of the organisations who submitted written evidence also said that the Commissioner should have powers greater than those proposed in the Bill.

43. The Committee noted the points raised by organisations in their written submissions and sought to examine these arguments in greater depth during oral evidence taking.

Existing bodies – who currently deals with human rights in Scotland?

44. In the Policy Memorandum, the Executive stated that “the general function of the Commissioner is to promote awareness and understanding of, and respect for, human rights. The Commissioner is therefore to be a promotional, not an enforcement, office that will work through increasing the awareness of human rights with the aim of securing compliance with those rights, not through directing or otherwise requiring as a matter of law public authorities to take or refrain from taking specific measures or actions.”44 As a devolved officeholder, appointed by the Scottish Parliament, the Commissioner’s remit will not extend to reserved matters.

45. The Committee was keen to examine to what extent there was a gap among existing statutory and non-statutory bodies which play a role in protecting and promoting human rights in Scotland. In addition to the Parliament’s own scrutiny role in relation to human rights issues in all devolved matters, the Committee considered the role and remit of a range of organisations to determine whether there would be any obvious overlap or duplication with the duties and functions of the proposed Commissioner.

46. In response to a request from the Committee, the Scottish Executive provided a table setting out the main statutory persons and bodies which have a locus in the human rights field. This is reproduced as part of the written evidence in Volume 2 of this report.

47. Of the various bodies identified, the Committee considers that the following key groups and organisations are among those most likely to have an interaction or crossover with the work of any Scottish Commissioner for Human Rights:

• The Scottish Courts

• Scottish Public Services Ombudsman

• Scotland’s Commissioner for Children and Young People

• HM Chief Inspector of Prisons for Scotland

• Scottish Law Commission

• Non-Governmental Organisations (NGOs) including campaign groups and charities

44 Policy Memorandum, para 18

11 †83 Justice 1 Committee, 1st Report, 2006 (Session 2)

48. In the Policy Memorandum, the Executive also acknowledged that the Commissioner is likely to be interested in issues which fall at least partly with in the remit of other bodies such as HM Inspector of Constabulary and the Care Commission.45 The Executive envisages that relationships with these bodies would be best managed through memoranda of understanding.46

The Scottish Courts 49. Since 1998, the Scottish Courts have been required to uphold the rights and freedoms guaranteed under the European Convention on Human Rights following its incorporation into domestic legislation. Research conducted on behalf of the Executive in 2004 suggested that “human rights issues under ECHR are an established category of argument in the Scottish courts.”47 Although a relatively short time has passed and limited evidence is available, it appears that the judiciary are effective in dealing with cases brought before them. The research noted that after an initial post-devolution flurry of activity there had been a decline in the number of human rights issues albeit that a steady stream continues to be raised especially in criminal justice cases. However, this represents a tiny fraction of all cases, the vast majority of which proceed without the inclusion or incidence of a Convention rights argument. The research also found that post-devolution case law does not suggest that domestic courts are overall more or less willing than Strasbourg to find that Convention rights have been infringed.

50. The Council of Europe’s Commissioner for Human Rights reinforced this sense of confidence in the judiciary following his visit to the UK in November 2004 when he reported that, “There can be no doubt [either] that the United Kingdom’s judiciaries largely and consistently satisfy the procedural requirements laid down by the European Convention on Human Rights. In sum, they serve as extremely effective guarantors of human rights.”48

51. The Committee considers that it is the Scottish Courts who must ultimately be relied upon to protect human rights in Scotland, through determination of cases brought before them.

Scottish Public Services Ombudsman 52. The Scottish Public Services Ombudsman (SPSO) is an independent and impartial body, established by Act of the Scottish Parliament in 2002, that investigates individual complaints that the administrative actions and service failures of public authorities in Scotland have resulted in hardship or injustice for individuals.

53. In her written submission to the Committee, the Ombudsman, Professor Alice Brown, set out the link between her role and the protection of human rights—

45 Policy Memorandum, para 82 46 Ibid. 47 Scottish Executive - The Use of Human Rights Legislation in Scottish Courts – Research Findings No.54/2004 48 Council of Europe Commissioner for Human Rights, report, para 79. For further information see http://www.coe.int/T/E/Commissioner_H.R/Communication_Unit/Documents/By_year/2005/index.a sp

12 †84 Justice 1 Committee, 1st Report, 2006 (Session 2)

“Human rights are fundamental to the concept of good public administration. Although the legislation governing the SPSO’s remit makes no direct reference to human rights, some of the complaints we deal with are in fact issues of breaches of human rights (for example the right to peaceful enjoyment of property, or to suitable care for the elderly). Further, maladministration may involve more general inconsistencies with human rights concepts, for example when a public authority fails to give adequate information regarding rights of objection or appeal.”49

54. When Professor Brown appeared before the Committee she stated that if a new Commissioner is to be created there would be a need to be clear about what its specific duties and remit are to be. She suggested that “the first principle is to ask whether it is possible to achieve what we want with bodies that already exist. Our answer to that, in relation to human rights, is we can – certainly in relation to individual complaints. It would therefore be duplication to create another body to consider individual complaints.”50 She continued—

“If a new office of commissioner for human rights is to be created, it must be seen as part of the governance and regulatory structure of Scotland. We must be absolutely clear that it fits into that framework and that the roles of those in the structure complement, rather than duplicate, one another.”51

55. When pressed by the Committee as to whether it would be preferable to establish a separate Scottish Commissioner for Human Rights or expand the powers of the Ombudsman to explicitly include promotion of human rights, Professor Brown favoured the former but indicated a willingness to engage in discussion about an enhanced role for her office if the Parliament decided that this alternative approach was preferable.52

Scotland’s Commissioner for Children and Young People 56. Established by the Parliament in 2003, the Commissioner for Children and Young People is tasked with promoting and safeguarding the rights of children and young people. In the Policy Memorandum, the Executive notes that “because human rights covers people of all ages, there will be overlap between the Scottish Commissioner for Human Rights and the Commissioner for Children and Young People.”53

57. In her written submission, the Commissioner for Children and Young People, Professor Kathleen Marshall, indicated her strong support for the creation of the Scottish Commissioner for Human Rights post which she considered would be complementary to her own. In oral evidence, Professor Marshall gave three main reasons for establishing the new post: firstly, to raise awareness about human rights; secondly, to act as a constant reminder or voice for human rights; and thirdly, to highlight the consequences when public authorities do not respect human rights in their work.54 Professor Marshall also acknowledged that there

49 Scottish Public Services Ombudsman, written evidence, page 1 50 Official Report, Justice 1 Committee, 21 December 2005; c 2528 51 Ibid. 52 Ibid; c 2529 53 Policy Memorandum, para 81 54 Official Report, Justice 1 Committee, 14 December 2005; c 2473

13 †85 Justice 1 Committee, 1st Report, 2006 (Session 2)

would be points of overlap between her role and that of the Scottish Commissioner for Human Rights, given her role in promoting and safeguarding the rights of children and young people. She explained how that might work in practice—

“I envisage that I would work closely with the commissioner for human rights. I envisage that, on general human rights issues that involve children and young people as well as other groups in society, we would talk about who would take the lead on specific parts of the issue and that it would depend partly on how it fitted into other work.”55

HM Inspectorate of Prisons for Scotland 58. HM Inspectorate of Prisons for Scotland was established in 1981. The Chief Inspector (HMCIP) is appointed by the Crown under section 7 of the Prisons (Scotland) Act 1989. HMCIP's main statutory responsibility is the regular inspection of Scotland’s 16 prison establishments. In carrying out this function, matters that are inspected and reported on include physical conditions, quality of prisoner regimes, morale of staff and prisoners, facilities and amenities available to staff and prisoners, questions of safety and decency, and the establishment's contribution to preventing re-offending.

59. The Inspectorate determines its own programme for the year. During any inspection the inspectors have free access to any part of the establishment or to any individual therein. During all full inspections and on most follow up inspections, arrangements are made to meet groups of prisoners and staff.

60. HMCIP has no direct input to the policy or management of the Scottish Prison Service, though recommendations in reports may have implications for either or both.

61. The Committee considers that there is potential for a high degree of overlap between the role performed by HMCIP and the power available to the Scottish Commissioner for Human Rights to inspect places of detention.

Scottish Law Commission 62. The Scottish Law Commission was set up by the Law Commissions Act 1965. A similar body exists for England and Wales. The task of the Commission is to recommend reforms to improve, simplify and update the law of Scotland and to offer the Government independent advice on law reform. This often involves examining whole areas of law and making recommendations to improve them.

63. Reform of the law itself must be carried out through the Scottish Parliament or, where appropriate, the UK Parliament. The Scottish Parliament has, for example, passed legislation to implement Commission recommendations for the abolition of feudal tenure of land and for the protection of the rights and interests of adults who are incapable of managing their own affairs

64. The Commission consists of five Commissioners appointed by the Scottish Ministers. One of the Commissioners is the Chairman who by convention is a Court of Session judge. The other Commissioners are drawn from those holding

55 Ibid; c 2484

14 †86 Justice 1 Committee, 1st Report, 2006 (Session 2) judicial office, advocates, solicitors or university law teachers. Commissioners are appointed for a maximum term of five years with the possibility of re-appointment. Funding for the Commission comes from the Scottish Executive Justice Department.

65. The Committee considers that there is also a potential for the Scottish Commissioner for Human Rights to, in part, duplicate the work of the Scottish Law Commission in reviewing the law.

Non-Governmental Organisations 66. There are a wide range of Non-Governmental Organisations (NGOs) active to some degree in the field of human rights in Scotland. The term NGO is used loosely to include organisations such as charities, pressure groups and campaign organisations.

67. The Committee received written evidence from several such organisations at Stage 1 and invited Amnesty International Scotland and the Scottish Human Rights Centre to give oral evidence. Both organisations declared their strong support for the SCHR Bill but made some comments on the specific powers to be conferred on the Commissioner. The Scottish Human Rights Centre commented—

“We would not want the promotion aspect to disappear, but we would not be content to accept the position of the Scottish Executive that the role is about promotion and awareness raising. Those are laudable and desirable ends, but without a much more specific ability to inquire into human rights abuses the commissioner will find it difficult to achieve substantive progress.”56

68. Amnesty International Scotland told the Committee—

“In terms of the promotion of human rights in the advice to Parliament, which you discussed earlier, I would point out that members of the Scottish Parliament have come to me for advice on their members' bills because it is not easy for individual MSPs to get advice on human rights issues from the Scottish Parliament Information Centre and so on. It would be useful if members of the Scottish Parliament could get such advice from a specialist human rights lawyer.”57

69. In his evidence to the Committee, Lord McCluskey suggested that an alternative to establishing the Commissioner would be to disburse the funding to existing NGOs, such as the Scottish Association for Mental Health and Age Concern, who could use the additional resources to promote the human rights of their own client base.58

70. Referring to this possible alternative approach in written evidence, the Minister rejected the proposition, stating—

56 Official Report, Justice 1 Committee, 14 December 2005; c 2500 57 Ibid; c 2503 58 Official Report, Justice 1 Committee, 21 December 2005; c 2541-42

15 †87 Justice 1 Committee, 1st Report, 2006 (Session 2)

“We believe that distributing the Commissioner’s proposed £1million a year budget to existing NGOs to work with public authorities in meeting best practice would be problematic given the scarcity of specialist human rights NGOs in Scotland. The number of Scottish human rights NGOs recently declined further when the Scottish Human Rights Centre, which was one of the most significant Scottish human rights campaigning organisations, regrettably closed its doors recently due to lack of funds. It is therefore highly questionable whether the NGO infrastructure exists, or could be readily created, to fulfil the role proposed for the Commissioner.”59

Conclusion 71. The list of bodies considered above is far from exhaustive but is illustrative of the wide range of organisations with a direct interest in the promotion and protection of human rights in Scotland. The Committee considers that there is a plethora of other organisations who also engage in human rights issues, albeit in a more limited way.

72. The Committee considers that the Parliament, its Members, NGOs and others, have as part of their role, a commitment (whether explicit or implicit) to consider, protect and promote human rights. The field of human rights in Scotland is therefore an extremely crowded one. No single organisation or individual can claim to be the pre-eminent authority on human rights in Scotland. The Committee considers that this diversity of interested organisations is essential to encourage the development of awareness and respect for human rights in Scotland. All of the bodies considered above have a role to play in this respect.

73. The Committee also wishes to record in this report its appreciation for the contribution of the Scottish Human Rights Centre since its original inception in 1970 as the Scottish Council for Civil Liberties.

Public opinion

74. The Committee commissioned MORI Scotland to carry out a research study to ask the general public in Scotland their views on human rights. Full results of the study are reproduced in Volume 2 of this report.

75. In its analysis of the results60, MORI Scotland reported that most people are able to form some impression of what the term ‘human rights in Scotland’ means to them.

• The most common associations are with equality or equal opportunities, mentioned by one in six (17%). This is consistent across age-groups, but more common among middle class respondents.

• Various freedoms (movement, religion, sexual expression or speech) are mentioned by one in eight (12%). Again, this is more commonly mentioned by middle class respondents.

59 Scottish Executive, written evidence, 14 January 2005, pages 6 and 7 60 MORI Scotland written evidence, 1 December 2005

16 †88 Justice 1 Committee, 1st Report, 2006 (Session 2)

• One in ten (10%) mentioned the protection of certain groups (ethnicity, sexuality, age, gender, disability). This was slightly more common among middle aged people, but otherwise consistent across all other groups.

• One in ten (9%) also mentioned the rights of asylum seekers, refugees and immigrants. This was more common among middle class respondents.

76. In response to the question “Generally speaking, how adequate is the protection offered by human rights in Scotland?”—

• A quarter of Scots (23%) feel that there is inadequate protection of human rights in Scotland; this is twice the number that feel there is excessive protection (11%). The majority feels that protection is either adequate (49%) or are unsure (17%).

• Women are more likely than others to feel that protection is inadequate, as are working class people.

• Middle class people are more likely to think that protection is adequate.

77. When asked whether they agreed or disagreed that Scotland would benefit from a government funded body to inform the public about human rights and which could investigate Scottish public bodies on devolved matters—

• Six in ten (62%) agree that such a body would be of benefit. (It is important to note that this question incorporates several elements, and it is not possible to say, for example, whether support is driven by interest in the informing role, or the investigative one.)

• Younger people are more likely to agree that such a body would be beneficial, as are working class people and women.

78. The Committee found the study helpful in gauging public awareness and understanding of human rights and their reaction to the prospect of the establishment of a Scottish Commissioner for Human Rights.

Added value — evidence from the Scottish Executive

79. Prior to taking evidence from the Minister in person, the Committee took the opportunity to raise a number of questions with him via correspondence. In his response to the question of whether a Commissioner would add value to the existing arrangements in Scotland, the Minister acknowledged the existence of the various bodies considered above (among others) and the functions which they perform. However, he went on to state that, “there is at present no statutory person or body whose express purpose is to promote human rights and in particular by doing so to help secure that human rights are respected across the whole range of public sector activities in Scotland. It is to fill that gap that the Executive has proposed the creation of a Scottish Commissioner for Human

17 †89 Justice 1 Committee, 1st Report, 2006 (Session 2)

Rights.”61 The response also stressed that none of the other Commissions and similar bodies have a specific remit to look at human rights issues.

80. Furthermore, in the Policy Memorandum, the Executive highlights research undertaken in 2001 by its own Legal Studies Research Team which revealed that many public bodies had only partial knowledge of the Human Rights Act 1998 and did not understand their duties under the legislation.62 In written evidence to the Committee, the Minister argued that specialist advice and guidance on human rights is hard to come by in Scotland despite some examples of excellence in the voluntary sector, the legal profession and academia. He stressed the role that the Commissioner could play in this respect—

“A statutory Human Rights Commissioner would provide a stable, independent and authoritative source of advice and expertise, backed up by additional powers of inquiry which are not available to NGOs or private practitioners.”63

81. In his oral evidence, the Minister sought to further emphasise the ways in which the Commissioner might add value through his or her involvement. He suggested these might include—

• guidance to the Parliament in the form of human rights analysis of appropriate legislation;

• consideration of civil liberties issues;

• advice and training on mainstreaming of human rights; and

• thematic consideration of issues arising from human rights cases.64

Committee’s view on whether there is a clear need for a Commissioner

82. The key issue for the Committee at Stage 1 is to decide whether a case has successfully been made for the creation of the position of the Commissioner – essentially is there a clear need for such a person?

83. The Committee believes that there is no need for Scotland to be defensive about its record in human rights. The evidence is that public bodies, in the main, successfully operate in a way which is compliant with Convention rights. This should be no surprise given that in doing so public authorities are merely acting in accordance with the law. It is simply what people would expect to be the case. The Committee also considers it is worth reiterating that, to date, no Acts of the Scottish Parliament have been successfully challenged on human rights grounds.

84. Added to this picture is the existence of a number of other organisations who already do valuable work in this general area.

61 Scottish Executive, written evidence, 14 January 2006, page 1 62 Policy Memorandum, para 42 63 Scottish Executive, supplementary written evidence, page 7 64 Official Report, Justice 1 Committee, 18 January 2006, c 2631-33

18 †90 Justice 1 Committee, 1st Report, 2006 (Session 2)

85. The Committee has therefore come to the conclusion that any gap which would be filled by the Commissioner would be a narrow one. Given this conclusion, a reasonable supplementary question is to ask whether this gap could not be bridged by a means other than the Commissioner?

86. During the course of the evidence-taking, it has been suggested that this could be done by disbursing monies to existing NGOs and/or expanding the remit of an existing statutory body (the Scottish Public Services Ombudsman is the body that would appear to be best-placed to take on any additional responsibility).

87. Having reviewed the role and remit of a selection of existing organisations in Scotland with some locus in relation to human rights, the Committee has concluded that, at present there is no single body in Scotland, either statutory or non-statutory, charged specifically with promoting awareness and understanding of, and respect for human rights. So, while other bodies may fulfil part of the remit that is envisaged for the Commissioner, the Committee accepts that there is no figurehead charged with promoting better understanding of human rights among public authorities in Scotland.

88. The Committee considers that a statutory body has the potential to make a difference through assisting public authorities in ensuring compliance with the European Convention on Human Rights and other international instruments in the delivery of public services.

89. If such a body can successfully deliver a core promotional and awareness raising role which will embed an awareness of human rights in the provision of services by all public authorities in Scotland then all Members of the Committee consider that the Executive’s public policy goal will have been achieved.

90. Equally, however, all Members of the Committee have concerns that the laudable aims which lie behind the Bill may be outweighed, in practice, by a number of unwelcome consequences. The Committee has three main concerns.

91. Firstly, the Committee has concerns about the meaning which has grown up around the term “human rights culture”. In Members’ experience, complaints made by members of the public are often described as being “human rights breaches” when, in fact, they are not. Such complaints may or may not be valid but their validity does not stand or fall on human rights grounds. The Committee therefore has concerns that the creation of a Commissioner has the potential to perpetuate popularly held misconceptions. Related to this point is a concern that Scottish society may become – without warrant – more litigious.

92. Secondly, the Committee is deeply concerned that members of the public simply will not know who they should (or should not) approach in relation to a complaint they may have. The Committee considers that there has been an uncoordinated escalation in the number of statutory commissions; commissioners and ombudsmen in recent years, with their separate offices spread across Scotland.

19 †91 Justice 1 Committee, 1st Report, 2006 (Session 2)

93. It seems to us that these public-facing organisations should, wherever possible, be seeking to adopt a one-stop-shop approach to create efficiencies in operational matters and also to best serve the public. Yet, the creation of a Scottish office of the CEHR plus the creation of this stand-alone Commissioner has the potential to add further to the public’s confusion as to who does what and where.

94. Thirdly, the Committee considers that the human rights issues which are likely to prove contentious over the years ahead are those which involve deciding between complex and competing economic and social rights. The Committee believes that one of the key issues at stake in these kind of cases is how public authorities should prioritise resources. As such, these are fundamentally matters of political judgement. That is to say, it is a matter for elected individuals in public authorities to determine public policy.

95. A Commissioner would, of course, have a legitimate view on these matters. Ultimately, however, all decisions by Scottish public bodies are subject to judicial oversight – where there are conflicting opinions, it will be for the courts to determine whether a breach of human rights has taken place.

96. Against this backdrop, the Committee has concerns about the desirability of a single individual being held up (as will inevitably happen in the media) as being the authoritative view on all human rights matters when, in reality, the picture is a lot more complicated than that. Again, the Committee considers that there is a need to ensure that the way in which any Commissioner’s role is defined does not lead to the public having an inaccurate view of the proper role and remit of the Commissioner and the context in which he or she works.

97. It is because the Committee has these concerns about the potential for these unwelcome consequences to arise should a Commissioner be created, that it is necessary to focus on a number of fundamental issues relating to specific provisions in the Bill before an overall view can be given on the desirability, or otherwise, of establishing a Commissioner.65

SPECIFIC ISSUES

Duty to monitor law, policy and practice

98. One of the general functions of the Commissioner, set out in section 3, is to keep under review the law of Scotland, and the policies and practices of Scottish public authorities. The Commissioner may also recommend changes to the law and to those policies and practices.

99. On initial reading, the Committee considered this function to be extremely wide-ranging and potentially onerous. The Committee sought the view of the Law

65 Accordingly, in the remaining paragraphs of the report any references to the Commissioner or recommendations about how the Bill might be amended should not be inferred as signifying the Committee’s agreement with the general principles of the Bill. The ‘overall conclusion’ section of the report contains the Committee’s view.

20 †92 Justice 1 Committee, 1st Report, 2006 (Session 2)

Society of Scotland and the Faculty of Advocates on this point. The Law Society stated—

“One has to look carefully at the duty, what it means and how it can be complied with. As I said, even the law reform committee of the Law Society of Scotland has 10 people working in it—six qualified people and four support staff. We cannot look at everything. Even with the assistance of the office in Brussels, it is an impossible task to cover every aspect of change that is being made to the fabric of our law on a daily basis, whether by legislative institutions or by the courts.”

“I am not sure whether if one were to fulfil that duty properly one would have no time to do anything else. An agreement might have to be reached on prioritisation between the commissioner and the Parliament, but it will certainly be an awesome responsibility to undertake.”66

100. The Faculty concurred—

“I agree with Michael Clancy that the law of Scotland is a large question and that, if created by the bill, the commissioner would have a great deal to do.”67

101. When presented with these views, the Minister directed the Committee to the qualifying phrase at the beginning of section 3—

“For the purposes of the Commissioner’s general duty”.

102. The Minister, therefore suggested that the duty to keep the law under review is subsidiary to the general duty in section 2. He continued—

“I must confess that, when I first read that section, I had similar issues to those that you raise. However, I was advised that that is the right way in which to phrase the section. It does not require the commissioner to consider everything straightaway or even in the future.”68

103. The Committee notes the comments of both the Law Society and Faculty of Advocates and the response from the Minister. Even set within the context of the Commissioner’s general duty to promote human rights, the Committee is not convinced by the Minister’s argument.

104. Given the number of statutory organisations whose primary roles are to keep under review the law of Scotland, the Committee is not convinced that there is a need to add another individual to this crowded field. Furthermore, the Committee considers that the inclusion of this duty will only serve, in practice, to dilute the core promotional and awareness-raising role of the Commissioner.

105. The Committee therefore recommends that the Executive reconsider this part of the Commissioner’s functions. Should the general principles of

66 Official Report, Justice 1 Committee, 11 January 2006; c 2606 67 Ibid. 68 Official Report, Justice 1 Committee, 18 January 2005; c 2656

21 †93 Justice 1 Committee, 1st Report, 2006 (Session 2)

the Bill be agreed to, the Committee expects to give the matter further consideration at Stage 2.

Governance and accountability issues

Power to co-operate with other bodies 106. As stated in the explanatory notes to the Bill, section 14 empowers the Commissioner to consult, act jointly with, co-operate with or assist any other person. Subsection (2) provides that the Commissioner must attempt to ensure that his or her activity does not duplicate the work of other statutory agencies with shared interests or remits that overlap with that of the Commissioner.

107. The Executive suggested in the Policy Memorandum that relationships with other bodies would best be managed through memoranda of understanding.69

108. Given the plethora of other bodies with some human rights locus identified by the Committee, the effectiveness of the working relationships between these bodies and the Commissioner will be fundamental to the success or failure of the position. The Committee considers that interaction between the proposed Commissioner, the Scottish Public Services Ombudsman and the GB Commission for Equality and Human Rights, principally through its Scotland Committee and Commissioner for Scotland, will be absolutely vital.

109. The Committee accepts that memoranda of understanding will be an appropriate mechanism by which to regulate the relationship between the Commissioner and other statutory bodies with which it may overlap. The Committee would expect such agreements to be published by the Commissioner. The Committee reserves its position in relation to the need for such memoranda to be subject to Parliamentary approval.

110. In written evidence, the Equal Opportunities Committee expressed the view that in order to facilitate public access to the functions of the SCHR and the CEHR, it would be beneficial if there were a single point of contact and that this would be made easier if the offices of the two commissions in Scotland were co- located70.

111. The Committee notes that the Scottish Parliamentary Corporate Body (SPCB) will have the power to approve the choice of location for the Commissioner’s office. The Committee appreciates why the Bill is worded in this way but considers that events have moved on.

112. The Committee recommends that the SPCB should give detailed consideration to the practical benefits which might be realised from the co- location of the proposed Commissioner with either the SPSO in Edinburgh or the CEHR in Glasgow.

Finance Committee 113. The Finance Committee was concerned that in taking the significant step of preparing a Bill to establish a public body such as the Scottish Commissioner for

69 Policy Memorandum, para 82 70 Equal Opportunities Committee, written evidence, 20 October 2005

22 †94 Justice 1 Committee, 1st Report, 2006 (Session 2)

Human Rights, the Executive does not appear to have fully considered the governance issues associated with the funding and financial oversight of that body. A sizeable number of commissioners and ombudsman have now been established in Scotland, and while they fulfil a very important role, it is critical that all parties – including the Commissioners themselves, the Executive, the Parliament, the SPCB, and the public – have a common understanding of the accountability mechanisms that operate with respect to such bodies. This issue goes beyond the financial aspect of the Bill and has important implications for the principles underpinning the legislation.

Procedures Committee 114. The Procedures Committee is currently conducting an inquiry into procedures relating to Crown appointments including issues relating to the re-appointment and removal of appointees. It is expected that the Committee will publish a report containing recommendations towards the end of February 2006.

115. The Committee notes the comments of the Finance Committee and the work currently being done by the Procedures Committee. Should the general principles of the Bill be agreed to, the Committee invites the Executive to review the accountability mechanisms for all such appointments in light of the Procedures Committee report and to bring forward appropriate amendments to the Bill at Stage 2.

116. Furthermore, the Committee recommends that the Executive conduct a review of all existing Commissions, Commissioners and Ombudsmen including consideration of their respective remits, the degree of overlap in their functions and prospects for co-location and improved co-operation.

Strategic plan to be subject to Parliamentary approval 117. The Committee asked the Minister to explain why the Bill does not include provisions to place the Scottish Commissioner under a statutory duty to prepare a strategic plan, and for that plan to be periodically reviewed and consulted on, similar to those for the CEHR contained in the Equality Bill. The Minister responded that there is not thought to be any need for such a provision. He suggested that the duty in the Equality Bill to prepare and consult on a strategic plan stems mainly from the equality remit of the proposed CEHR. He directed the Committee to Section 12 of the SCHR Bill which would require the Commissioner to lay an annual report before the Parliament. Section 12(2) provides that this report must include a summary of the action which the Commissioner proposes to take in the next reporting year in pursuance of his or her general duty. In addition, section 12(3) provides that the Commissioner must comply with any directions given by the Parliamentary Corporation as to the form and content of reports. The Minister concluded—

“There is nothing in the Bill that would prevent the Parliament asking the Commissioner to produce a strategic plan or similar document if that was felt to be desirable.”71

71 Scottish Executive, written evidence, 14 January 2006, page 5

23 †95 Justice 1 Committee, 1st Report, 2006 (Session 2)

118. The Committee does not consider that the Executive’s position goes far enough. Should the general principles of the Bill be agreed to, the Committee considers that in order to promote the openness and accountability of the Commissioner, and to assist Parliamentary scrutiny, it is essential that the Bill should be amended to place a duty on the Commissioner to produce a strategic plan. In line with the requirement placed upon the CEHR to produce such a plan72, the Committee recommends that the Commissioner should be required to prepare a strategic plan for a rolling three year period; to consult on this plan and to lay the finalised plan before the Parliament.

Financial control issues

119. Section 1 and schedule 1 of the Bill make provision for the appointment and associated terms and conditions for the operation of the Scottish Commissioner for Human Rights. The Commissioner is to be an individual appointed by Her Majesty on the nomination of the Scottish Parliament.73 Operational matters such as finance, staffing and office location will require the consent of the Scottish Parliament Corporate Body (SPCB).74

Finance Committee report 120. In considering the Financial Memorandum for the Bill, the Finance Committee sought and received written evidence from the SPCB and took oral evidence from officials of the Scottish Executive.

121. The Finance Committee’s consideration of the Financial Memorandum to the Bill occurred at a time when that Committee is increasingly concerned with rising costs associated with the growing number of commissioners and also with the tension between the statutory independence of commissioners and ombudsman and their accountability for expenditure of public funds. In the context of the Finance Committee’s consideration of the 2006-07 Budget Process, it raised questions as to whether there is a need for powers to be written into legislation that will afford the SPCB greater budgetary control over commissioners.

122. In its recent report on the 2006-07 Budget, the Finance Committee noted very serious concerns over potential gaps in accountability in respect of all parliamentary commissioners and ombudsman. It recommended that there be a review of the powers of direction in relation to these officeholders in the legislation that set them up. It stated that on the assumption that there is a gap in the legislation with regard to budgetary control over such bodies, then the necessary steps be taken to strengthen the budgetary powers of the SPCB in relation to them.75

123. In respect of this Bill, the Finance Committee considered that rather than wait for such a review to occur, proactive steps need to be taken to address the apparent absence of clarity regarding accountability. That Committee recommended to the Justice 1 Committee that this issue be raised with the

72 Equality Bill, clauses 4 and 5 73 SCHR Bill section 1(2) 74 SCHR Bill schedule 1 75 Finance Committee, Report on Stage 2 of the 2006-07 Budget Process, paragraph 116

24 †96 Justice 1 Committee, 1st Report, 2006 (Session 2)

Minister and that steps be taken to clarify in the legislation that the SPCB should have responsibility for setting the Commissioner’s budget.

SPCB evidence to Justice 1 Committee 124. The Committee, therefore, invited the SPCB to comment on these elements of the Bill. In written evidence, the SPCB agreed that in order for the Commissioner to be seen to be independent in the exercise of his or her functions from Scottish Ministers, he or she should be accountable to the Parliament. The SPCB also agreed that it should be responsible for recruitment, determination of the Commissioner’s budget, and approval of both staff numbers and the location of the Commissioner’s office.

125. The SPCB also specifically recommended that the grounds for removal of the Commissioner should be set out in the legislation and that the SPCB should appoint the Accountable Officer and that this should be the Commissioner him or herself.

126. When Nora Radcliffe MSP gave oral evidence on behalf of the SPCB she was asked about the adequacy of the proposed budget and the process for agreeing commissioner budgets. On the question of adequacy, she expressed concern that although the proposed £1m per annum would be sufficient in the first year, “it might prove somewhat restrictive in subsequent years.” She highlighted the greater budgetary provision of £1.4m and £1.3m for the Scottish Information Commissioner and Scotland’s Commissioner for Children and Young People respectively.76

127. In response to a question about whether by making the role of the SPCB more explicit in relation to setting the Commissioner’s budget, there would be a risk of compromising the independence of the Commissioner, Mrs Radcliffe responded—

“I do not think that that risk would arise, because someone, somewhere must say what the limits are on spending and be accountable for the use of public money. At some stage, someone will have to say whether something is or is not giving value for public money. It seems to me that, in this instance, the corporate body is the appropriate body to do that. I do not see why that should in any way compromise the integrity or the functionality of the commissioner.”77

128. The Committee invited the SPCB to give further consideration to the compatibility of the SPCB budgeting process for the Commissioner with the Paris Principles which guide the establishment of National Human Rights Institutions.

The Paris Principles 129. In October 1991, an international workshop was convened in Paris to review and update information on existing NHRIs. Participants included representatives of national institutions, States, the United Nations, its specialised agencies, intergovernmental and non-governmental organisations. In addition to exchanging

76 Official Report, Justice 1 Committee, 18 January 2006, c 2624 77 Ibid, c 2621

25 †97 Justice 1 Committee, 1st Report, 2006 (Session 2)

views on existing arrangements, the workshop participants drew up a comprehensive series of recommendations on the role, composition, status and functions of NHRIs. These recommendations (endorsed by the UN Commission on Human Rights in March 1992 (resolution 1992/54) and by the General Assembly in its resolution A/RES/48/134 of 20 December 1993) are commonly referred to as the “Paris Principles”. These set out best practice guidance for establishing NHRIs.

Guarantees of independence 130. Section B2 of the Paris Principles provides that—

“The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the government and not be subject to financial control which might affect this independence.”78

SPCB response 131. In its written response to the Committee, the SPCB specifically acknowledged the above guidance and stated—

“We consider within the proposed legislation these elements of adequacy and independence will be met. The draft legislation clearly states that the Commissioner will have his or her own staff and premises, although the staff complement, the associated terms and conditions and the location of premises will be subject to the approval of the SPCB. Clearly the Commissioner will be independent of government given the role of the Parliament. The financial review functions of the SPCB do not undermine independence. The SPCB has no powers of veto to prevent activities being undertaken by the Commissioners but its powers rather support the principle of adequacy of funding.”79

132. The SPCB suggested that a balance must be struck between the need to be able to monitor and account for expenditure and achieving independence. To this end it considered that “a directional power for budgetary approval would provide the clarity necessary to both the Parliament and the Commissioner in terms of budgetary approval.”80 The response concluded—

“In summary, therefore, we do not consider that the checks and balances which are in place with regard to: the approval by the SPCB of budgets; the Finance Committee's role; the duty of the Accountable Officer; the powers of Audit Scotland; and the obligation to lay reports before the Parliament, are in any respect, in conflict with the ‘Paris Principles’. Indeed, we consider that the arrangements as structured give assurance of operational independence

78 Section B2 Paris Principles relating to the status and functioning of national institutions for protection and promotion of human rights 79 SPCB, supplementary written evidence, 24 January 2006, page 2 80 Ibid.

26 †98 Justice 1 Committee, 1st Report, 2006 (Session 2)

to Commissioners whilst, at the same time, providing accountability for the expenditure of public funds.”81

133. The Committee fully endorses the views of the SPCB in relation to the compliance of the Bill with the Paris Principles. The Committee considers that the SPCB’s proposals would achieve an appropriate balance between the independence and accountability of the Commissioner. Should the general principles of the Bill be agreed to, the Committee looks forward to receiving amendments from the SPCB and will give these matters further consideration at Stage 2.

Funding issues

134. The Financial Memorandum estimates that the costs of running the Commissioner’s office will be £1 million per annum. This amount is to be transferred from the Executive to the SPCB each year. Additional non-recurrent set up costs are estimated at £208,000. The Financial Memorandum emphasises that the figures are indicative rather than prescriptive, with the structure of the office to be determined by the SPCB and the Commissioner.82

135. The Finance Committee considered that as the SPCB will be responsible for the budget of the Commissioner, and will be responsible for meeting any shortfall between the £1m allocated by the Executive and the true costs of the Commissioner, it would have been both important and reasonable for the SPCB to have had detailed input into the costings in the Financial Memorandum. This would also have furnished the Executive with ready access to presumably reliable estimates. The Finance Committee recommended that in future, the Executive ensure that the SPCB has detailed input into the costings for any bill which will afford the SPCB a financial role.

136. This Committee is deeply concerned that detailed input from the SPCB was not sought by the Executive during the drafting of the Financial Memorandum. The Committee notes that of the £1m annual allocation, less than 25 per cent (£243,000) is identified as “Functional costs”, including promotion and awareness- raising. The remainder of the budget is identified as comprising staff and office costs.83 The Committee considers that the balance of spending by a Commissioner should be much more in favour of functional expenditure. It also notes that there is no allocation identified for legal advice and representation, which it might be reasonable to assume a Commissioner would require in order to fulfil his or her role effectively.

137. The Committee is not satisfied with the projected budget breakdown prepared by the Executive and published in the Financial Memorandum. Should the general principles of the Bill be agreed to, the Committee recommends that the Executive and the SPCB should jointly re-examine the proposed budget and provide the Committee with a clear justification for the figures arrived at in advance of Stage 2.

81 Ibid, page 3 82 Explanatory Notes, page 14 83 Financial Memorandum, table of costs

27 †99 Justice 1 Committee, 1st Report, 2006 (Session 2)

138. The Finance Committee also recommended that the lead committee pursue with the Minister whether the Executive would meet the entire cost of any financial shortfall that might arise rather than the SPCB having to be responsible.

139. When the Justice 1 Committee raised this with the Minister his response was that “the commissioner will have a responsibility not to spend money that they do not have.”84 He concluded—

“Having said that, I am not saying that consideration could not then be given to future budgets, if the parliamentary authorities thought it right to seek an increase or, indeed, a reduction, should that become appropriate at a later point. That is an issue of future budgets, however, rather than one of budget overspends, which should not happen.”85

140. The Committee notes the Minister’s comments but considers that in the real world overspends by public authorities can and do occur. In circumstances where an overspend was genuinely unforeseeable, perhaps relating to the costs associated with intervention in an important court case, then the Committee considers that there should be a memorandum of understanding between the Commissioner and the SPCB to determine how projected or actual overspends will be dealt with.

A Commissioner or an alternative model

141. The Committee is aware that prior to the introduction of the Bill there was considerable debate about the most appropriate structure for a human rights commission in Scotland.

142. In the Policy Memorandum, the Executive set out the rationale for its decision to provide in the Bill for one Commissioner supported by up to two deputy Commissioners. In particular it stated—

“Keeping numbers small and manageable would make strategic control and decision making more straightforward and put less pressure on resources.”86

143. The Executive also acknowledged the alternative approaches which had been considered, including having a commission with a wide representation reflecting many different aspects of civil society. This is the model recommended in the Paris Principles for National Human Rights Institutions.87

144. The Executive noted that this can result in a large number of commissioners – perhaps 10 or 12. The Northern Ireland Human Rights Commission has one full- time Chief Commissioner and 9 to 12 part-time Commissioners. The Republic of Ireland has one full-time commissioner and 14 part-time commissioners. New Zealand has a Chief Commissioner, a full-time Commissioner for race relations, a full-time commissioner for equal opportunities and five part-time commissioners.88

84 Official Report, Justice 1 Committee, 18 January 2006, c 2678 85 Ibid, c 2679 86 Policy Memorandum, para 93 87 Ibid, para 95 88 Ibid, para 96

28 †100 Justice 1 Committee, 1st Report, 2006 (Session 2)

The CEHR will have 10 to 15 Commissioners, including 1 Commissioner “who knows about conditions in Scotland”89.

145. Suggestions from respondents to the Executive’s second consultation on the structure most appropriate for Scotland included—

• a single, full-time chief commissioner and 8 to 12 part-time commissioners;

• a full-time chief commissioner with 2 full-time deputies and up to 6 part- time commissioners; or

• 4 full-time commissioners and up to 20 lay commissioners who would receive only expenses.90

146. The Committee has already noted in this report the variation in the structure of existing NHRIs in other countries. It considers that different models each have their own potential benefits and pitfalls. The approach chosen by the Executive of one Commissioner and up to two deputy Commissioners (with support staff) will have the advantage of creating a readily identifiable figurehead for the promotion of human rights in Scotland. Effective decision making and clear accountability for those decisions would also be positive features of this structure.

147. However, the Committee is concerned that to entrust the task of promoting awareness, understanding and respect for human rights to one person, even with deputies, is potentially fraught with difficulties. Even the most eminently qualified candidate with a legal or human rights background cannot possibly claim to fully understand and, therefore, represent the interests of all groups in Scottish society. Input into strategy formulation and decision making by a small collective group of part-time Commissioners or human rights experts (perhaps forming a Commission, advisory group or other body) may be more likely to result in balanced and representative outcomes.

148. The Committee is not convinced that the Executive has put forward a compelling case to explain why it changed its approach from a Commission to a Commissioner.

149. There are a range of views among Committee members as to what would be the right approach to take should the general principles of the Bill be agreed to. In the meantime, the Committee recommends that the Executive reconsiders whether a Commissioner would be preferable to a Commission or an alternative statutory body.

89 Equality Bill, Schedule 1, para 1(3)(b) 90 Policy Memorandum, para 103

29 †101 Justice 1 Committee, 1st Report, 2006 (Session 2)

OTHER MATTERS

Relationship with the courts

Intervention in court proceedings 150. Section 11 of the Bill gives the Commissioner the power to intervene in civil proceedings before a court, with the exception of children’s hearing proceedings, in relation to an issue arising which the Commissioner considers is relevant to his or her general duty and which raises a matter of public interest.91 “Court” is defined as the Court of Session and sheriff court, both as courts of first instance and appeal, and the Land Court.92 The Executive considers that it would be helpful to allow the courts access to the Commissioner’s expertise in considering cases where human rights issues arise.93

151. The Policy Memorandum explains that intervention will be either at the Commissioner’s request, at the discretion of the court as to whether to allow such an intervention, or at the request of the court.94

152. In its written evidence, the Law Society of Scotland raised several points in relation to the restricted power of the Commissioner to intervene only in civil proceedings. Firstly, the Law Society questioned the exclusion from the definition of “court” of the Appellate Committee of the House of Lords, the Judicial Committee of the Privy Council and the prospective UK Supreme Court, as, in the Law Society’s view, human rights issues in a case might only come into focus in appeal proceedings. Secondly, the Law Society proposed that there should be a right of appeal should the Commissioner be, unreasonably, refused leave to intervene by a court. Thirdly, the Law Society questioned the exclusion from intervening in children’s hearing proceedings and criminal proceedings. Finally, it sought clarification of whether an intervention by the Commissioner at first instance in the sheriff court or Court of Session would entitle the Commissioner to participate in any appellate proceedings in the same case.95

153. The Faculty of Advocates considered it anomalous that the power to intervene in civil cases would not extend to cases in the House of Lords, the Privy Council and the Lands Tribunal for Scotland. The Faculty also considered that the Commissioner might usefully seek to intervene in appellate criminal cases raising matters of principle, “particularly so in Lord Advocate’s references.”96

154. A Lord Advocate’s reference is a form of criminal appeal. "Where an accused has been acquitted the Lord Advocate may make a reference to the High Court for a ruling on a point of law, without prejudicing the acquittal",97 although the procedure allows the Crown to obtain a ruling on a point of law even where a

91 Explanatory notes, para 48 92 SCHR Bill, section 11(9) 93 Policy Memorandum, para 72 94 Ibid, para 73 95 Law Society of Scotland, written evidence, 22 November 2005, pages 2 and 3 96 Faculty of Advocates, written evidence, 17 November 2005, page 2 97 Walker, DM. The Scottish Legal System (8th Edition) E. Green. Edinburgh. 2001. p 350. Although Walker cites the Criminal Justice (Scotland) Act 1980, s37, the current reference is the Criminal Procedure (Scotland) Act 1995 s123(5)

30 †102 Justice 1 Committee, 1st Report, 2006 (Session 2) conviction has resulted.98 References can be on points of law inherent in the original charge, as well as those that might have arisen as part of proceedings.99 The Criminal Procedure (Scotland) Act 1995 contains further provisions regarding the procedure to be followed, representation and fees.100

155. In his written evidence, the Minister sought to clarify the intended relationship between the Commissioner and the courts. He explained that intervention by third parties in civil proceedings in general is already possible, although it appears to be extremely rare in practice. Section 11 is, therefore a “for the avoidance of doubt” provision to ensure that the Commissioner did not encounter difficulties when seeking to intervene, as had been the case with the Northern Ireland Commission.

156. However, the Minister’s letter also made clear that, at present, there is no scope at all for such intervention in criminal proceedings or in children’s hearings. He considered that creating any such right would be a “fundamental and far- reaching” change to the nature of proceedings and would raise the question of whether third parties in general should be able to intervene in such cases. For this reason, the Executive remained of the view that the Commissioner should not be given the power to intervene in these types of proceedings.101

157. When he appeared before the Committee, the Minister was asked about the equivalent powers of the CEHR and whether it would have a locus in criminal proceedings. He agreed to clarify the position for the Committee in writing.

158. The Committee has yet to receive a substantive response from the Executive. It has therefore been impossible for the Committee to reach any conclusion on this matter. The Committee is extremely disappointed at the failure of the Executive in this regard. Should the general principles of the Bill be agreed to, the Committee expects to return to this matter at Stage 2.

Judicial review and other legal proceedings 159. The Law Society pointed out in its written evidence that the CEHR will have the right to raise proceedings for judicial review on its own behalf but that the Scottish Commissioner will not have a similar power.102

160. Clause 31 of the Equality Bill provides that the CEHR “shall have the capacity to institute or intervene in legal proceedings, whether for judicial review or otherwise, if it appears to the Commission that the proceedings are relevant to a matter in connection with which the Commission has a function.”103

161. In written evidence, the Minister explained that Scottish Ministers had received advice that the Scottish Parliament could not confer a power on the Scottish Commissioner to raise legal actions in his or her own name, since that would go against section 7(1) of the Human Rights Act 1998 (which provides that

98 CP(S)A 1995 s123(1) 99 Lord Advocate’s Reference (No.1 of 2000) 2000 JC 143, 20901 SCCR 296, 2001 SLT 507. 100 CP(S)A 1995 s123 101 Scottish Executive, written evidence, 14 January 2006, pages 1 and 2 102 Ibid, page 3 103 Equality Bill [HL], clause 31(1)

31 †103 Justice 1 Committee, 1st Report, 2006 (Session 2)

an action relating to human rights is only competent if the litigant is a victim or potential victim). His detailed explanation continued—

“Paragraph 1(2)(f) of Schedule 4 to the Scotland Act 1998 precludes the Scottish Parliament from amending the Human Rights Act. Also, section 100(1) of the Scotland Act 1998 states that the Scotland Act does not enable a person to bring an action in court and rely on a breach of Convention rights unless the person is a victim or potential victim of the breach. So it is thought that seeking to disapply the victim test by conferring a power on the Commissioner to raise legal actions arising from alleged breaches of human rights in his or her own name would almost certainly be outwith devolved competence.”

162. The Committee pressed the Minister on the point during oral evidence to confirm the Executive’s policy on the matter. The Minister responded—

“The Executive’s policy position is that we do not need, and should not proceed in the direction of giving the commissioner powers to take cases in their name. If the view of Parliament ultimately differed on that, and if Parliament wanted to proceed in that direction, it would require legislation at Westminster in the form of an order made under section 104 of the Scotland Act 1998 to give us the powers to do that.”104

163. However, the Minister has subsequently written to the Committee saying that “we [the Executive] are not confident that section 104 could be used in this way”.105

164. The Committee is left uncertain as to what is the position vis a vis the raising of legal actions in human rights cases in Scotland. But, the picture would appear to be as follows:

• The CEHR may raise a legal action in its own name in connection with an alleged breach of human rights in relation to a reserved matter in the Scottish courts.

• The CEHR may raise a legal action in its own name in connection with an alleged breach of human rights in relation to a devolved matter in the Scottish courts if the Scottish Commissioner consents to such an action.

• The Scottish Commissioner may not raise a legal action in his/her own name in connection with an alleged breach of human rights in relation to a devolved matter in the Scottish courts.

• According to the Executive, the only way in which the Scottish Commissioner could be given such a power would be by way of primary Westminster legislation.

104 Official Report, Justice 1 Committee, 18 January 2006, c 2647 105 Scottish Executive, Supplementary written evidence [dated 4 February 2006, received 14 February 2006]

32 †104 Justice 1 Committee, 1st Report, 2006 (Session 2)

165. The Committee is unsure of the Executive’s position in this matter. The Committee only very belatedly received supplementary written evidence and this evidence actually contradicts the oral evidence given by the Minister. The Executive has also failed to answer the question of whether the Commissioner could give consent to the CEHR to take legal proceedings in relation to a devolved matter. On the face of it, it would appear as if there is a major inconsistency between the powers which are available to the CEHR and the powers which are proposed for the Scottish Commissioner. If this is the case, then the Committee considers that this will only serve to add further confusion to an already confused picture.

166. The Committee invites the Executive to make its position clear prior to the Stage 1 debate.

Power to conduct inquiries / investigate individual complaints 167. Section 5 of the Bill sets out the power of the Commissioner to conduct inquiries into the policies and practices of a particular Scottish public authority, Scottish public authorities generally or Scottish public authorities of a particular description. Certain restrictions to this power are set out in section 6 of the Bill, including restricting inquiries to the general policies and procedures of public authorities, as opposed to individual cases. Several witnesses raised this significant restriction during Stage 1 scrutiny and the Committee has considered the matter carefully.

168. In the Policy Memorandum, the Executive states that the power to conduct inquiries “will allow the Commissioner to examine areas where failures to comply appear to be occurring in a broad area of public interest and on which there may be a general level of ‘complaint’ by the public.”106 The Policy Memorandum goes on to explain that the restriction regarding investigation of individual complaints is designed to avoid demands that the Commissioner spend an increasing amount of time and effort on that task, so distracting the Commissioner from his or her other promotional roles.107

169. In oral evidence, the Scottish Public Services Ombudsman argued that to create a new body with power to investigate individual complaints would represent duplication. However, other witnesses took a different view. The Disability Rights Commission suggested that the Commissioner should have the power to consider specific issues that are brought to their attention. They also raised concern about the restriction on the bodies which the Commissioner will be able to investigate, pointing out that—

“the Commissioner will be restricted to consideration of an individual organisation only if another organisation carries out the same functions. That means that the Commissioner will not be able to examine a local authority or a health board. We have concerns about that.”108

106 Policy Memorandum, para 53 107 Ibid; para 65 108 Official Report, Justice 1 Committee, 14 December 2005; c 2474

33 †105 Justice 1 Committee, 1st Report, 2006 (Session 2)

170. Drawing a comparison with the proposed powers of the CEHR, the Equal Opportunities Commission added—

“We are also concerned about the scope of the Scottish Commissioner’s power to conduct inquiries. The United Kingdom [sic] commission will be able to examine individual organisations, to report whether they have breached human rights and then to challenge that through judicial review.”109

171. In a written submission to the Committee, the National Institutions Unit of the Office of the United Nations High Commissioner for Human Rights (OHCHR) commented—

“There does not seem to be any formal justification for limiting an inquiry, for the most part, to general, service-wide matters beyond the general decision to deal with systemic issues rather than individual ones.”110

“Even accepting the rationale for dealing with systemic issues only, and not individual cases, it remains that a systemic issue may relate to a single authority and not be service-wide. A particular authority may, despite general rules and policies, misinterpret, misapply or otherwise act in contradiction to those rules. Obliging the Commission, in such instances, to carry out a broader inquiry would be unnecessary and costly, and could potentially weaken the Commissioner’s resolve to conduct inquiries.”111

172. The Minister, when invited to comment on one potential inquiry topic for the Commissioner, that of procedures relating to teachers who may be falsely accused of improper conduct in relation to a pupil, responded—

“It would be perfectly possible for the commissioner, if he or she saw fit, to hold an inquiry not into the practice of a specific council but into the practice of councils generally in matters of that kind and to produce a report with recommendations, which the appropriate bodies would or would not take on board, as they saw fit. That would be a contribution of a powerful kind both to the debate and, perhaps, to parliamentary legislation if that was thought appropriate. It would be one remedy or way of taking things forward. Nobody is suggesting that the human rights commissioner or anybody else could solve all the problems by their very existence or that they would have the power to take action in every conceivable situation. That is certainly not the case.”112

173. There are a range of views among Committee members as to what would be the right approach to take. Should the general principles of the Bill be agreed to, the Committee expects to give the matter further consideration at Stage 2.

109 Ibid; c 2475 110 Office of the United Nations High Commissioner for Human Rights, written evidence, page 5 111 Ibid; page 6 112 Official Report, Justice 1 Committee, 18 January 2006; c 2649

34 †106 Justice 1 Committee, 1st Report, 2006 (Session 2)

Places of detention 174. Associated with the Commissioner’s general power to conduct inquiries are further specific powers, in section 8 of the Bill, relating to entry, inspection and interview in places of detention. This section empowers the Commissioner to inspect such places of detention and to conduct private interviews with any person detained there, subject to that person’s consent.113 Schedule 3 makes further provision with regard to these powers. Paragraph 1 of schedule 3 requires the Commissioner to give a 14 day notice period to the manager of any place he or she intends to inspect or in which he or she wishes to conduct an interview with an incarcerated person.114

175. The Policy Memorandum states that although neither of the Executive’s consultations proposed that the Commissioner be given a statutory power of access to places of detention, several responses to the consultations argued that some right of access would be valuable and cited the power of the European Committee for the Prevention of Torture to enter places of detention as a model.115 The Executive also states in the Memorandum that it has been proposed that all human rights commissions in the UK should be nominated as “national preventative mechanisms (NPMs)” under the Optional Protocol to the UN Convention Against Torture (OPCAT). There is therefore a need to give the Commissioner a legal power of access to allow it to perform a monitoring role under OPCAT when it comes into force sometime after 2007.116

176. When questioned about the inclusion of a 14 day notice period in the Bill, Scottish Executive officials sought to clarify the rationale for its inclusion—

“For practical reasons, 14 days’ notice should be given to ensure that an institution is sufficiently aware that the commissioner is going to visit. That is in no way to suggest that a cover-up would be going on. However, from experience elsewhere I know that there have been occasions when people who ought to have been given access to prisons have not got or have had difficulties getting such access, simply because the staff on the ground were not told that they were coming and were therefore reluctant to let them in for security reasons. The 14 days’ notice is to ensure that arrangements can be made and proper access given.”117

177. The Committee was concerned at this apparent restriction on the Commissioner’s powers in relation to places of detention and raised it again with the Minister when he appeared before the Committee. In response, the Minister provided further clarification—

“The power is intended to be a back-up; it is not intended that the commissioner would normally give 14 days’ notice. We would expect those organisations that are covered by the powers to give immediate access to the

113 Explanatory notes, paras 38 and 39 114 Ibid, para 97 115 Policy Memorandum, para 58 116 Ibid, para 62 117 Official Report, Justice 1 Committee, 7 December 2005; c 2432

35 †107 Justice 1 Committee, 1st Report, 2006 (Session 2)

commissioner. However, the 14-day provision sets a basis for further action if access is not granted.”118

178. After further detailed discussion, the Minister offered to consider a revision to the 14 days’ notice provision.119

179. The Committee considers that this is an important matter of detail. The Committee considers that the Commissioner, if created, should be able, by law, to enter places of detention without giving any prior notice to the institution concerned. The Committee, therefore, welcomes the commitment given by the Minister to give this matter further consideration.

180. Should the general principles of the Bill be agreed to, the Committee will give this matter further consideration at Stage 2.

Equal opportunities

181. In its consideration in the Policy Memorandum of the anticipated effects on equal opportunities from the provisions of the Bill the Executive states that—

“The Commissioner’s activity will help to improve the delivery of public services in a way that ensures that people are treated with the respect they deserve, regardless of their gender, race, religion, age, disability or sexual orientation. This will be particularly beneficial for those in society who are most vulnerable or disadvantaged.”120

182. The Committee notes this assertion and notes the support for the Bill from many organisations active in promoting equal opportunities.

Delegated Powers

183. The Subordinate Legislation Committee considered the delegated powers in the Bill at its meeting on 24 January 2006. The Committee submitted its report to the Justice 1 Committee, as the lead committee for the Bill, under Rule 9.6.2 of Standing Orders.

184. The Executive provided the Parliament with a delegated powers memorandum121.

Delegated Powers Provisions 185. The Subordinate Legislation Committee considered each of the delegated powers provisions in the Bill. The Committee approved without further comment: sections 6(6)(d), 11(7) and 19.

118 Official Report, Justice 1 Committee, 18 January 2005; c 2669-70 119 Ibid, c2673 120 Policy Memorandum, para 105 121 http://www.scottish.parliament.uk/business/bills/48-scottishCommissioner/b48s2-introd- memo.pdf

36 †108 Justice 1 Committee, 1st Report, 2006 (Session 2)

Financial Memorandum and Policy Memorandum

186. Under Rule 9.6.3 the lead committee is obliged to consider and report on the Bill’s Financial Memorandum and shall, in preparing its report, take into account any view submitted to it by the Finance Committee. The lead committee shall also consider and report on the Policy Memorandum.

187. At various points in this report, the Committee has made reference to the Financial Memorandum, the report of the Finance Committee and the Policy Memorandum. The Committee has no further comments that it wishes to make at this stage.

OVERALL CONCLUSION

188. In a country where actual breaches of human rights are extremely rare and in a country with open, independent and robust legislative and judicial systems, the question is whether we need to create a public body charged with promoting best practice in human rights.

189. The Committee notes that there already exists in Scotland a plethora of statutory and non-statutory bodies with some degree of promoting and protecting the human rights of specific groups (e.g. children) or the public at large.

190. However, the Committee accepts that the creation of a GB Commission for Equality and Human Rights means that there will be a statutory body in Scotland charged with encouraging best practice in relation to human rights pertaining to ‘reserved matters’.

191. All Members of the Committee are in agreement that the gap in provision in relation to ‘devolved matters’ is narrow.

192. However, there are diverging views among Committee members about how this gap should be filled.

193. Option one is that the gap in provision should be met by extending the remit of a pre-existing statutory body. The most obvious candidate is the Scottish Public Services Ombudsman who has told us that she already deals with cases of alleged breaches in human rights. The argument behind this option is that alternative legislation should be brought forward which would extend the role of the Ombudsman so that this office-holder could also take on a promotional role. Furthermore, it is argued that giving additional powers to a pre-existing body would be more cost-efficient than establishing a new office-holder, meaning that more funds can be spent on core, promotional functions. The Member who supports this option would wish to see a recommendation to the Parliament that the general principles of the Bill be rejected, with the Executive being asked to bring forward alternative legislative proposals.

194. Option two is favoured by Members who consider that while there would appear to be merit in the ‘existing statutory body’ option, as outlined above, further work would need to be done by the Executive to see whether it is feasible in practice. In particular, Members who support this option consider that many of the

37 †109 Justice 1 Committee, 1st Report, 2006 (Session 2)

concerns raised in the latter part of this report about the way in which the Bill proposes the Commissioner will operate would still need to be addressed even if the role were to be carried out by a different statutory body.

195. These concerns focus on: (1) there currently being insufficient clarity in the role that the Commissioner would carry out, given the intended budget; (2) the need for assurances that the establishment of another Commissioner will not lead to confusion among the general public; (3) the need for assurances about the accountability of the Commissioner; and (4) the need for a strategic plan.

196. Members who support this option consider that no recommendation should be made to the Parliament as to whether the general principles of the Bill should be agreed to or rejected. Should the Parliament decide that the Bill should go forward to Stage 2, Members who support this option consider that the Bill would need to be very substantially revised in order for them to be able to vote for the Bill at Stage 3.

197. Option three is favoured by Members who are, in principle, sympathetic to the establishment of a Commissioner but who have a number of concerns about important matters of detail relating to how the Commissioner would operate.

198. A number of specific recommendations have been made in the body of this report. Members who support this option would wish to recommend that the general principles of the Bill be agreed to, provided that the Executive positively responds to these recommendations at Stage 2.

199. While there is a great deal of consensus among Members about the problems associated with the Bill, there are three divergent views on what the Committee’s overall conclusion should be on the general principles of the Bill.

200. The first option involves a recommendation to the Parliament to reject the general principles of the Bill; the second option involves no recommendation being made to the Parliament on the general principles of the Bill; and the third option involves a recommendation to the Parliament to agree the general principles of the Bill.

201. None of these options enjoys the support of a majority of Members of the Committee.

202. By deduction, the Committee is not in a position to recommend to the Parliament whether the general principles of the Bill should be agreed to or not.

203. The Committee invites the Executive to reflect on the import of this conclusion prior to the Stage 1 debate.

38 †110 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE A

Subordinate Legislation Committee

Scottish Commissioner for Human Rights (Scotland) Bill

The Committee reports to the lead Committee as follows—

Introduction

1. The Committee considered the delegated powers in the Scottish Commissioner for Human Rights (Scotland) Bill at its meeting on 24 January 2006. The Committee submits this report to the Justice 1 Committee, as the lead committee for the Bill, under Rule 9.6.2 of Standing Orders.

2. The Executive provided the Parliament with a delegated powers memorandum1.

Delegated Powers Provisions

3. The Committee considered each of the delegated powers provisions in the Bill. The Committee approves approve without further comment: sections 6(6)(d), 11(7) and 19.

1 http://www.scottish.parliament.uk/business/bills/48-scottishCommissioner/b48s2-introd-memo.pdf

1 †111 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE B

Finance Committee

Report on the Financial Memorandum of the Scottish Commissioner for Human Rights Bill

The Committee reports to the Justice 1 Committee as follows—

Introduction

4. Under Standing Orders, Rule 9.6, the lead Committee in relation to a bill must consider and report on the bill’s Financial Memorandum at Stage 1. In doing so, it is obliged to take account of any views submitted to it by the Finance Committee.

5. This report sets out the views of the Finance Committee on the Financial memorandum of the Scottish Commissioner for Human Rights Bill (“the Bill”), for which the Justice 1 Committee has been designated by the Parliamentary Bureau as the lead committee at Stage 1.

Background

6. The Committee agreed to adopt level 2 scrutiny in considering the Bill. This involved seeking written evidence from organisations financially affected by the Bill, then taking oral evidence from the Executive Bill Team, before producing this report.

7. The Committee sought and received written evidence from the Scottish Parliamentary Corporate Body (SPCB). This is annexed at the end of this report.

8. At its meeting on 29 November, the Committee took oral evidence from officials of the Scottish Executive. This evidence can be viewed by clicking here.

9. The Committee’s consideration of the Financial Memorandum for the Bill was assisted by its recent evidence sessions and report on Stage 2 of the 2006-07 Budget Process, and in particular, the budget of the Scottish Commissioner for Children and Young People. Evidence of the SPCB when it appeared before the Committee on 15 November can be viewed by clicking here. The oral evidence of Scotland’s Commissioner for Children and Young People, given at the Committee meeting of 22 November, can be viewed by clicking here.

10. The Committee expresses its thanks to those who submitted their views on the Bill to us.

2 †112 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE B

Financial Memorandum

11. The Bill provides for the establishment of a Scottish Commissioner for Human Rights (SCHR) and up to two deputy commissioners. The Commissioner is to be independent in that he or she may establish his or her own priorities and strategic direction, but is to be accountable to the Scottish Parliament in the same manner as other commissioners and ombudsmen established by the Parliament.

12. The Commissioner’s role will be to promote awareness and understanding of, and respect for, human rights. The Bill sets out several functions in respect of this role, including:

x monitoring law, policy and practice; x providing information, advice, guidance and education; x carrying out inquiries; and x intervening in civil court proceedings.2

13. The Financial Memorandum estimates that the costs of running the Commissioner’s office will be £1 million per annum. This amount is to be transferred from the Executive to the SPCB each year. Additional non-recurrent set-up costs are estimated at £208,000. The specific costs provided in the Financial Memorandum are set out below.3 The Financial Memorandum emphasises that the figures are indicative rather than prescriptive, with the structure of the office to be determined by the SPCB and the commissioner.4

2006-07 Subsequent years Staff costs Recruitment of Commissioners (para. 9) 11,000 0 Commissioners’ salaries (para. 8) 112,000 224,000 Recruitment of staff (para. 11) 100,000 6,000 Staff salaries (para. 16) 175,000 350,000 Training (para. 18) 10,000 10,000 Sub-total 408,000 590,000

Office costs Rent (para. 19) 38,000 75,000 Acquisition and conversion (para. 19) 88,000 0 Equipment (para. 20) 110,000 8,000 Running costs (para. 21) 40,000 80,000 Sub-total 276,000 163,000

Functional costs Travel (para. 22) 18,0005 18,000

2 The Bill, ss 2-11 3 Scottish Commissioner for Human Rights Bill: Explanatory Notes, page 18 4 Explanatory Notes, page 14 5 This is a revised figure, given by Executive officials in evidence, Peddie, Official Report, 29 November 2005, Col 3192

3 †113 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE B

Promotion and awareness-raising (para. 175,000 175,000 23) Research (para. 25) 25,000 50,000 Sub-total 209,000 243,000 Total 902,0006 996,000

Issues considered by the Committee

14. In considering the Financial Memorandum of the Bill, two key issues were pursued by the Committee: the financial accountability of the Commissioner; and costings in respect of the Commissioner.

Financial accountability versus independence 15. The Finance Committee’s consideration of the Bill occurred at a time when the Committee is increasingly concerned with rising costs associated with the growing number of commissioners and also with the tension between the statutory independence of commissioners and ombudsman and their accountability for expenditure of public funds. In the context of our consideration of the 2006-07 Budget Process, the Committee recently raised questions as to whether there is a need for powers to be written into legislation that will afford the SPCB greater budgetary control over commissioners.

16. As with legislation establishing similar officeholders, funding for the Scottish Commissioner for Human Rights will be made available by the SPCB, which will also scrutinise the Commissioner’s expenditure proposals and budget bids. The Bill departs from the legislation for other commissioners by providing that the SPCB is to approve the Commissioner’s office location and staff numbers. In its submission, the SPCB welcomed this new and stronger accountability mechanism.7

17. The Policy Memorandum, however, appears to outline greater powers for the SPCB than are proposed in the Bill, stating that accountability of the Commissioner to the Parliament will involve the Commissioner’s budget being ‘determined’ by the SPCB.8

18. Given our concerns in this area, and apparent difference between the powers in the Bill and the Policy Memorandum, the Committee asked Executive officials what consideration has been given to providing the SPCB with full budgetary control over the Commissioner. Officials advised that the Executive’s working assumption was that the SPCB does have budgetary control over commissioners:

“we regard the detail of the commissioner budgets as a matter for the corporate body to determine in consultation with the commissioners on the basis of the bids that they put forward.”9

6 ibid 7 Submission from SPCB 8 Scottish Commissioner for Human Rights Bill: Policy Memorandum, page 17 9 Peddie, Official Report, 29 November 2005, Col 3193

4 †114 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE B

19. However, when representatives of the SPCB appeared before the Committee as part of our consideration of the 2006-07 Budget Process, it was apparent that the SPCB does not consider that it has the power to ‘determine’ commissioners’ budgets. Nora Radcliffe MSP, a member of the SPCB, noted the sensitivities around the SPCB being perceived to be ‘too directive’ with commissioners.10 These sensitivities were also apparent when the Commissioner for Children and Young People gave evidence to the Committee.11

20. The Committee is troubled by obvious discrepancy between the views of the Executive, the SPCB and at least one commissioner regarding the powers of the SPCB in respect of commissioners’ budgets. The Committee considers that the financial framework within which commissioners operate needs to be addressed, so that commissioners’ independence is protected, whilst the power of parliamentary authorities to set commissioners’ budgets is strengthened. The exact powers of the SPCB need to be clear to all parties.

21. In its recent report on the 2006-07 Budget, the Committee noted very serious concerns over potential gaps in accountability in respect of all parliamentary commissioners and ombudsman. It recommended that there be a review of the powers of direction in relation to these officeholders in the legislation that set them up. It stated that on the assumption that there is a gap in the legislation with regard to budgetary control over such bodies, then the necessary steps be taken to strengthen the budgetary powers of the SPCB in relation to them.12

22. In respect of this Bill, the Committee considers that rather than wait for such a review to occur, proactive steps need to be taken to address the apparent absence of clarity regarding accountability. The Committee recommends to the Justice 1 Committee that this issue be raised with the Minister and that steps be taken to clarify in the legislation that the SPCB should have responsibility for setting the Commissioner’s budget.

Costings 23. The second major issue explored by the Committee concerned the specific costings in the Financial Memorandum.

24. In its submission the SPCB raised a number of concerns about the Financial Memorandum’s estimates. As the budget holder for the Commissioner, the SPCB will be required to meet any shortfall between the £1m annual allocation from the Executive and the actual costs of the Commissioner. The SPCB considers that in its first year the Commissioner’s costs will be within the £1m budget as his or her office will not be fully operational, but that the costings for the second and subsequent years may be less realistic.

25. The SPCB’s specific concerns about the Financial Memorandum’s costings included:

10 Radcliffe, Official Report, 15 November 2005, Col 3093-5 11 Marshall, Official Report, 22 November 2005 12 Finance Committee, Report on Stage 2 of the 2006-07 Budget Process, page xx

5 †115 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE B

x the estimated Commissioner’s salary is less than that currently paid to other commissioners in Scotland and the basis for the salary levels of deputy commissioners is unclear; x in comparison with the requirements of other commissioners in Scotland, staff salaries may have been underestimated; x office acquisition and conversion may not have been fully costed (should it not be possible to co-locate with another Commissioner); and x no specific provision had been made for the Commissioner to undertake inquiries, or for external consultants or advice, including legal advice.13

26. More generally, the SPCB was concerned that it only had sight of the detail of the Financial Memorandum when the Bill was published.14

27. When the Committee asked about the basis for the commissioner and staff salary costings, Executive Officials explained that their estimates were based on those of comparable bodies around the United Kingdom. They stated that the saw the figure for the Commissioner’s salary as a median figure compared with some other bodies in Scotland and elsewhere in the UK. Similarly, in relation to staff costs they stated:

“We considered the broad staffing structure of comparable organisations in other jurisdictions and thought about how that sort of structure might need to be adapted for the specific roles that we had set out in the bill for the Scottish commissioner for human rights. Our estimate of the staffing that would be necessary in Scotland was based on the fact that the Scottish commissioner will have a slightly different role from those of the Irish and Northern Irish commissioners. For example, the Scottish commissioner will not have the complaints-handling or case-supporting role that the others have. We have scaled back the staffing assumption based on the fact that we do not expect the commissioner to be involved in those particularly resource-intensive roles.”15

28. Officials also explained that their office costs were drawn from comparisons with other similar bodies in the UK.16

29. When asked about other aspects of the costings, including the absence of provision for legal advice, versus the clear provision for research, Executive officials explained—

“To be frank, we had a bit of difficulty in drafting the financial memorandum, because the body will have independence over its work programme and the issues that it decides to take up … one of the difficulties that we faced was that if we had set out in the financial memorandum a more detailed, line-by- line description of what we anticipated its expenditure to be on, say, inquiries or legal fees, that would have created an expectation of how we expected the commissioner to structure his or her work programme … We set things out

13 Submission from SPCB 14 Submission from SPCB 15 Thomson, Official Report, 29 November 2005, Col 3199 16 Ibid, Col 3198

6 †116 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE B

rather generally and we deliberately did not go into the detail of how much we expect to be spent on each of the statutory powers, because we did not want to create an expectation that that expenditure would be met.”17

30. However, the Committee noted that these difficulties did not appear to have arisen in relation to the proposed budget for research. The Committee is concerned that there does not appear to be firm basis for several of the assumptions made in the Financial Memorandum.

31. When questioned in evidence about the adequacy of the Executive’s consultation with the SPCB when preparing the Financial Memorandum, Executive officials indicated that some formal discussions had taken place, but that in retrospect it might have been better to provide the SPCB with a draft of the detailed costings at an earlier stage.18

32. Within the context of our comments above in relation to accountability and budgetary powers, the Committee is also concerned that in not consulting adequately with the SPCB over the detail of the Bill, the Executive has further placed the SPCB in an invidious position as the budget holder for the new Commissioner.

33. The Committee considers that as the SPCB will be responsible for the budget of the Commissioner, and will be responsible for meeting any shortfall between the £1m allocated by the Executive and the true costs of the Commissioner, it would have been both important and reasonable for the Corporate Body to have had detailed input into the costings in the Financial Memorandum. This would also have furnished the Executive with ready access to presumably reliable estimates.

34. The Committee recommends that in future, the Executive ensure that the SPCB has detailed input into the costings for any bill which will afford the Corporate Body a financial role. The Committee also recommends that the lead committee pursue with the Minister whether the Executive would meet the entire cost of any financial shortfall that might arise rather than the SPCB having to be responsible.

35. At a broader level, the Committee is also concerned about the incremental growth in the number of commissioners and the potential problems that can arise in the absence of a strategic approach to such bodies. The Committee is aware that in its submission to the lead committee for the Bill, the Scottish Public Service Ombudsman pointed to a potential overlap between its responsibilities and those of the proposed Commissioner.19 Such jurisdictional issues are not only a legal and administrative problem: within the context of the Efficient Government initiative, they cannot be financially justified.

36. The Committee is of the view that the Executive has not so far demonstrated that there is a requirement for such a Commissioner or that its remit and responsibilities do not overlap with any other Commissioner or body, If a situation

17 Ibid, Col 3201 18 Peddie, Official Report, 29 November 2005, Col 3200 19 Submission to the Justice 1 Committee from the Scottish Public Service Ombudsman

7 †117 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE B

arises where there is an overlap between the remits of Commissioners, the budgets of the bodies concerned must be examined to ensure there is no unnecessary duplication. If there is substantial overlap between the remits of such bodies then Parliament has to decide whether the creation of another Commissioner is appropriate, given the cost, and whether it would be better either to incorporate the functions into the remit of one of the existing commissioners or alternatively to incorporate functions of existing Commissioners as appropriate into the new one, potentially allowing one or more of these structures to be dispensed with.

Conclusion

37. The Committee is concerned that in taking the significant step of preparing a Bill to establish a public body such as the Scottish Commissioner for Human Rights, the Executive does not appear to have fully considered the governance issues associated with the funding and financial oversight of that body. A sizeable number of commissioners and ombudsman have now been established in Scotland, and while they fulfil a very important role, it is critical that all parties – including the Commissioners themselves, the Executive, the Parliament, the SPCB, and the public - have a common understanding of the accountability mechanisms that operate with respect to such bodies. This issue goes beyond the financial aspect of the Bill and has important implications for the principles underpinning the legislation.

8 †118 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE C

EXTRACTS FROM MINUTES OF JUSTICE 1 COMMITTEE

26th Meeting, 2005 (Session 2), Wednesday 14 September 2005

Proposed Human Rights Commission (Scotland) Bill: The Committee agreed to request that an adviser be appointed in respect of forthcoming legislation to create a Scottish Human Rights Commission, and that it would consider possible candidates for appointment in private at a future meeting.

30th Meeting, 2005 (Session 2), Wednesday 5th October 2005

In attendance were Sarah Harvie-Clark and Murray Earle from the Scottish Parliament Information Centre.

Items in private: The Committee agreed to take items 4 and 5 in private.

5. Scottish Commissioner for Human Rights Bill (in private): The Committee considered its approach to the scrutiny of Stage 1 of the forthcoming Bill; agreed a preferred candidate for appointment as an adviser; and agreed to further consider this matter, in private, at its next meeting.

31st Meeting, 2005 (Session 2), Wednesday 26 October 2005

Scottish Commissioner for Human Rights Bill (in private): The Committee considered its approach to the scrutiny of Stage 1 of the Bill; agreed to make arrangements for a possible visit to London to meet with the Joint Select Committee on Human Rights and with officials in the Department of Constitutional Affairs; and agreed to further consider this matter, in private, at its next meeting.

34th Meeting, 2005 (Session 2), Wednesday 2 November 2005

Scottish Commissioner for Human Rights Bill (in private): The Committee considered and agreed its approach to evidence taking at Stage 1 of the Bill; and agreed to delegate to the Convener responsibility for arranging for the SPCB to pay, under Rule 12.4.3, any expenses of witnesses in relation to the Bill.

39th Meeting, 2005 (Session 2), Wednesday 30 November 2005

Scottish Commissioner for Human Rights Bill: The Committee agreed to receive a briefing in private at its next meeting from Professor Jim Murdoch, Committee Adviser on the Bill and Sarah Harvie-Clark and Murray Earle, Scottish Parliament Information Centre (SPICe). The Committee also agreed to consider the main themes arising from future evidence sessions on the Scottish Commissioner for Human Rights Bill in private, in order to inform the drafting of its Stage 1 report.

40th Meeting, 2005 (Session 2), Wednesday 7 December 2005

In attendance were Professor Jim Murdoch, Committee Adviser and Sarah Harvie-Clark and Murray Earle from the Scottish Parliament Information Centre.

Scottish Commissioner for Human Rights Bill (in private): The Committee received a briefing from Professor Jim Murdoch, Committee Adviser on the Bill and Sarah Harvie-Clark and Murray Earle, Scottish Parliament Information Centre (SPICe).

Scottish Commissioner for Human Rights Bill: The Committee took evidence on the Bill at Stage 1 from—

Brian Peddie, Bill Team Leader, Ed Thomson, Policy Officer and Ross Truslove, Policy Officer, Justice Department and John St Clair, Office of the Solicitor to the Scottish Executive, Scottish Executive;

9 †119 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE C

and then from—

Simon Braunholtz, Director, MORI Scotland.

41st Meeting, 2005 (Session 2), Wednesday 14 December 2005

In attendance were Professor Jim Murdoch, Committee Adviser and Sarah Harvie-Clark and Murray Earle from the Scottish Parliament Information Centre.

Scottish Commissioner for Human Rights Bill: The Committee took evidence on the Bill at Stage 1 from—

Lynn Welsh, Head of Scottish Legal Affairs, Disability Rights Commission;

Muriel Robison, Director of Legal Affairs Scotland, Equal Opportunities Commission; and

Professor Kathleen Marshall, Scotland’s Commissioner for Children and Young People;

and then from—

David Cobb, Member of Executive Committee, Scottish Human Rights Centre; and

Rosemary Burnett, Programme Director, Amnesty International Scotland.

Scottish Commissioner for Human Rights Bill (in private): The Committee considered the main themes arising from the evidence sessions to date, to inform the drafting of its Stage 1 report.

42nd Meeting, 2005 (Session 2), Wednesday 21 December 2005

In attendance were Professor Jim Murdoch, Committee Adviser and Sarah Harvie-Clark and Murray Earle from the Scottish Parliament Information Centre.

Scottish Commissioner for Human Rights Bill: The Committee took evidence on the Bill at Stage 1 from—

Professor Alice Brown, Scottish Public Services Ombudsman and Carolyn Hirst, Deputy Scottish Public Services Ombudsman;

and then from—

Lord McCluskey, retired Senator of the College of Justice;

and then from—

Dr Rachel Murray, University of Bristol.

Scottish Commissioner for Human Rights Bill (in private): The Committee considered the main themes arising from the evidence sessions to date, to inform the drafting of its Stage 1 report.

1st Meeting, 2006 (Session 2), Wednesday 11 January 2006

In attendance were Professor Jim Murdoch, Committee Adviser and Sarah Harvie-Clark, Scottish Parliament Information Centre (SPICe).

Scottish Commissioner for Human Rights Bill: The Committee took evidence on the Bill at Stage 1, via video-link, from Rosslyn Noonan, Chief Commissioner, New Zealand Human Rights Commission.

10 †120 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE C

2nd Meeting, 2006 (Session 2), Wednesday 11 January 2006

In attendance were Professor Jim Murdoch, Committee Adviser and Sarah Harvie-Clark and Murray Earle, Scottish Parliament Information Centre (SPICe).

Scottish Commissioner for Human Rights Bill: The Committee took evidence on the Bill at Stage 1 from—

Michael P Clancy, Director of Law Reform, Christine O’Neill, member of the Law Reform Committee, The Law Society of Scotland; and Valerie E Stacey, QC, Vice Dean of the Faculty of Advocates.

Scottish Commissioner for Human Rights Bill (in private): The Committee considered the main themes arising from the evidence sessions to date, to inform the drafting of its Stage 1 report.

3rd Meeting, 2006 (Session 2), Wednesday 18 January 2006

In attendance were Professor Jim Murdoch, Committee Adviser and Sarah Harvie-Clark and Murray Earle from the Scottish Parliament Information Centre.

Scottish Commissioner for Human Rights Bill: The Committee took evidence on the Bill at Stage 1 from—

Nora Radcliffe, MSP, member of the Scottish Parliament Corporate Body and Huw Williams, Head of Corporate Policy, The Scottish Parliament; and then from—

Robert Brown, MSP, Deputy Minister for Education and Young People, Brian Peddie, Bill Team Leader, Ed Thomson, Policy Officer and John St Clair, Office of the Solicitor to the Scottish Executive, Scottish Executive.

Scottish Commissioner for Human Rights Bill: The Committee agreed to consider its draft Stage 1 report in private at future meetings.

Scottish Commissioner for Human Rights Bill (in private): The Committee considered the main themes arising from the Stage 1 evidence sessions, to inform the drafting of its Stage 1 report.

4th Meeting, 2006 (Session 2), Wednesday 1 February 2006

Scottish Commissioner for Human Rights Bill (in private): The Committee considered a draft Stage 1 report and agreed to continue its consideration of the report at its next meeting.

5th Meeting, 2006 (Session 2), Wednesday 8 February 2006

Scottish Commissioner for Human Rights Bill (in private): The Committee considered a draft Stage 1 report and agreed to continue its consideration of the report at its next meeting.

6th Meeting, 2006 (Session 2), Wednesday 22 February 2006

Scottish Commissioner for Human Rights Bill (in private): The Committee agreed its Stage 1 report subject to specified changes being made.

11 †121 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

40th Meeting, 2005 (Session 2), 7 December 2005, Written Evidence

SUBMISSION FROM MORI SCOTLAND

Research conducted by MORI Scotland

Findings from a face-to-face survey of 1,018 adults aged 16+ across Scotland, interviewed in their homes. Sample weighted to be representative of the population profile, and interviews conducted on 27 October – 2 November 2005.

Most people are able to form some impression of what the term ‘human rights in Scotland’ means to them.

x The most common associations are with equality or equal opportunities, mentioned by one in six (17%). This is consistent across age-groups, but more common among middle class respondents20 x Various freedoms (movement, religion, sexual expression or speech) are mentioned by one in eight (12%). Again, this is more commonly mentioned by middle class respondents x One in ten (10%) mentioned the protection of certain groups (ethnicity, sexuality, age, gender, disability). This was slightly more common among middle aged people, but otherwise consistent across groups x One in ten (9%) also mentioned the rights of asylum seeker, refugees and immigrants. This was more common among middle class respondents x Some made comments which revealed a general attitude to the issue. Seven per cent commented that human rights were ‘politically correct’ or had gone too far. Fewer (3%) said they felt human rights were of little value or meaningless x Around three in ten (29%) said that the term human rights in Scotland meant nothing to them, or they could form no associations with the term. This was more common among working class respondents21 x A quarter of Scots (23%) feel that there is inadequate protection of human rights in Scotland, twice the number that feel there is excessive protection (11%). The majority feels that protection is either adequate (49%) or are unsure (17%). x Women are more likely than others to feel that protection is inadequate, as are working class people x Middle class people are more likely to think that protection is adequate x Six in ten agree that a government funded body to inform the public about human rights and investigate Scottish public bodies on devolved matters would be of benefit. It is important to note that this question incorporates several elements, and it is not possible to say, for example, whether support is driven by interest in the informing role, or the investigative one. x Younger people are more likely to agree that such a body would be beneficial, as are working class people and are women x The people most commonly considered likely to benefit from a new body are immigrants and ethnic minorities (each mentioned by around a quarter), older people (19%), children and young people (17%) and those with disabilities (16%). x Immigrants and refugees are more commonly mentioned as potential beneficiaries by men and middle class people (the groups that are also less supportive of the idea of the body) x Homeless people, children and young people are more commonly mentioned by working class and younger people (the groups that are more supportive of the idea of the body)

Simon Braunholtz Managing Director, MORI Scotland 1 December 2005

20 Defined by the occupation of the chief income earner, middle class includes essentially professional, managerial, clerical and white collar employment 21 Working class includes manual, skilled and semi-skilled employment, as well as those unemployed or on benefits and pensioners on state pensions

12 †122 Human Rights Poll

Research Study Conducted for Scottish Parliament

13 †123 Technical note

MORI Scotland was commissioned to ask the general public in Scotland their views on human rights. The questions were included in October’s Scottish Opinion Survey run monthly by TNS.

A quota sample of 1,018 adults were interviewed across Scotland between 27th October and 2nd November. All interviewing was conducted face-to-face in respondents’ homes at 44 sampling points. Data are weighted to match the profile of all adults aged 18+ in Scotland, based on population profile estimates from the National Readership Survey. Respondents aged 16-17 years are excluded from analysis. An asterisk (*) denotes a finding of less than 0.5%, but greater than zero. Where figures do not add up to 100, this is due to multiple coding or computer rounding

Questionnaire with Topline Results

(i) What words or phrases come to mind when I mention “Human Rights in Scotland”? % x Of little value / meaningless 3 x European mumbo-jumbo 1 x Protection of certain groups (ethnicity/sexuality/age/gender/disability) 10 x More rights for asylum seekers 9 x More rights for prisoners 2 x Criminals getting away with crimes / lighter sentences 3 x Services for the disabled * x Higher taxes - x Freedom of movement / religion / sexual expression / speech 12 x More duties placed on the public sector - x More work for lawyers 1 x Politically correct / going too far / it’s abused 7 x Equality / equal opportunity / no bias (everyone has rights) 17 x Children’s rights 2 x Humanitarian support / basic human needs 2 x Rights to justice / any mention police 3 x Smoking – any mention 1 x Employment / equality in employment / unemployed 1 x Housing / right to / homelessness 1 x Poverty 1 x Good standard of human rights in Scotland / it’s important 3 x Amnesty International 1 x Any mention animals / animal cruelty * x Others 6 x Nothing 11 x Don’t know / Not stated 18

14 †124 (ii) Generally speaking, how adequate is the protection offered by human rights in Scotland? % x Insufficient 23 x Adequate 49 x Excessive 11 x Don’t know. 17

(iii) Do you agree or disagree that Scotland would benefit from a government funded body to inform the public about human rights and which could investigate Scottish public bodies on devolved matters? % x Agree, 62 x Disagree 28 x Don’t know. 10

(iv) If such a body were established, which individuals or groups of people do you think would be most likely to benefit? % x Women / Men 16 x Gay/lesbian 7 x Children/young people 17 x Older people 19 x Victims of crime 11 x Immigrants/refugees 25 x Ethnic minorities 23 x People in trouble with the police 7 x People with a disability 16 x Homeless people 13 x Gypsy/travellers 4 x Convicted criminals 8 x Lawyers 5 x Everybody / general public 7 x Working class 1 x People living on benefits * x Asylum seekers 1 x Under privileged / poor 4 x Scottish people 1 x Vulnerable people 1 x Single parents 1 x The unemployed 1 x The public bodies themselves * x Low income families 1

15 †125 x Those in power / government MPs 2 x Different religions 1 x People with a drug problem * x Anyone disadvantaged * x The rich * x Schools / education * x Businesses * x Families * x Other 2 x Don’t know 18

16 †126 Page 1 SCOTTISH OPINION SURVEY - HUMAN RIGHTS : OCTOBER 2005 : 114670

Table 1 Q.1 WORDS/PHRASES WHICH COME TO MIND WHEN HEAR THE PHRASE ‘HUMAN RIGHTS’ BASE: All Respondents

Total SEX AGE CLASS AREA East/ Male Female 18-24 25-34 35-44 45-54 55-64 65+ AB C1 C2 DE West South North Unweighted base 1018 467 551 102 173 220 156 151 196 139 329 219 331 467 312 239 Weighted base 1017 484 533 115 156 188 176 149 213 215 293 214 295 426 378 213

Of little value/ 33 17 16 1 5 3 6 7 10 6 3 8 15 19 8 6 meaningless 3% 4% 3% 1% 3% 2% 3% 5% 5% 3% 1% 4% 5% 5% 2% 3% European mumbo-jumbo 10 3 7 2 - 2 1 4 2 5 2 1 2 4 6 1 1% 1% 1% 1% - 1% * 3% 1% 2% 1% * 1% 1% 2% * Protection of certain 103 41 62 9 13 18 27 14 18 23 30 27 23 43 32 28 groups (ethnicity/ 10% 9% 12% 8% 8% 10% 15% 9% 9% 11% 10% 13% 8% 10% 8% 13% sexuality/age/gender/ disability) More right for asylum 92 37 54 5 15 15 29 15 12 33 28 15 15 46 25 20 seekers/refugees/ 9% 8% 10% 4% 10% 8% 16% 10% 6% 16% 10% 7% 5% 11% 7% 10% immigrants More rights for 16 10 6 2 2 3 5 1 3 2 1 8 5 10 3 3 prisoners 2% 2% 1% 2% 2% 1% 3% * 1% 1% * 4% 2% 2% 1% 1% Criminals getting away 28 14 14 - 5 2 3 5 13 6 9 8 6 15 9 5 3% 3% 3% 3% 1% 2% 3% 6% 3% 3% 4% 2% 3% 2% 2% 17 with crimes/lighter - sentences Services for the 2 1 1 - 1 - - - - - 1 1 - 1 1 - disabled * * * - * - - - - - * 1% - * * - Higher taxes ------Freedom of movement/ 126 76 51 17 20 28 19 25 13 46 40 19 22 28 69 29 religion/sexual 12% 16% 10% 15% 13% 15% 11% 17% 6% 21% 14% 9% 7% 7% 18% 14% expression/speech More duties placed on ------the public sector ------More work for lawyers/ 11 6 5 1 1 4 - 3 1 2 3 3 3 1 6 4 legal system 1% 1% 1% 1% 1% 2% - 2% 1% 1% 1% 1% 1% * 1% 2% Politically correct/ 71 43 27 2 8 11 18 11 21 15 21 21 14 29 24 18 going too far/its abused 7% 9% 5% 2% 5% 6% 10% 7% 10% 7% 7% 10% 5% 7% 6% 9% Equality/equal 174 83 90 19 27 35 30 26 33 51 55 33 34 71 73 29 opportunity/no 17% 17% 17% 16% 18% 18% 17% 17% 16% 24% 19% 15% 12% 17% 19% 14% bias(everyone has rights) Childrens rights 17 2 15 3 1 6 2 4 1 4 4 2 6 7 7 3 2% * 3% 3% * 3% 1% 3% * 2% 2% 1% 2% 2% 2% 1% Humanitarian support/ 16 8 8 - 5 3 2 3 4 3 6 2 5 2 13 1 basic human needs 2% 2% 2% - 3% 1% 1% 2% 2% 1% 2% 1% 2% * 3% 1% Rights to justice/any 27 15 12 2 5 5 4 5 5 14 6 1 5 9 12 7 mention police 3% 3% 2% 1% 3% 3% 2% 4% 2% 7% 2% 1% 2% 2% 3% 3%

Prepared by TNS System Three Fieldwork : 27th October - 2nd November 2005 † 127 † 128

Page 2 SCOTTISH OPINION SURVEY - HUMAN RIGHTS : OCTOBER 2005 : 114670

Table 1 Q.1 WORDS/PHRASES WHICH COME TO MIND WHEN HEAR THE PHRASE ‘HUMAN RIGHTS’ BASE: All Respondents

Total SEX AGE CLASS AREA East/ Male Female 18-24 25-34 35-44 45-54 55-64 65+ AB C1 C2 DE West South North Unweighted base 1018 467 551 102 173 220 156 151 196 139 329 219 331 467 312 239 Weighted base 1017 484 533 115 156 188 176 149 213 215 293 214 295 426 378 213

Smoking - any mention 9 5 4 1 2 3 - 1 1 - 1 5 3 3 4 2 1% 1% 1% 1% 1% 2% - 1% * - * 2% 1% 1% 1% 1% Employment/equality in 15 8 7 4 2 4 3 - - - 7 4 4 7 6 1 employment/unemployed 1% 2% 1% 3% 1% 2% 2% - - - 2% 2% 1% 2% 2% 1% Housing/right to/ 13 5 8 1 - 1 2 3 3 4 6 - 3 9 2 1 homelessness 1% 1% 2% 1% - 1% 1% 2% 1% 2% 2% - 1% 2% 1% 1% Poverty 13 4 8 - 3 4 3 1 1 4 2 2 5 10 1 2 1% 1% 2% - 2% 2% 2% 1% * 2% 1% 1% 2% 2% * 1% Good standard of human 28 16 12 2 8 5 4 3 6 10 6 6 6 17 7 3 rights in Scotland/its 3% 3% 2% 2% 5% 3% 2% 2% 3% 4% 2% 3% 2% 4% 2% 2% important Amnesty International 6 4 2 - 2 2 2 - 1 3 2 1 1 2 2 3 1% 1% * - 1% 1% 1% - * 1% 1% * * 1% * 1% Any mention animals/ 3 2 1 - 2 1 - 1 - - - - 3 3 - -

18 animal cruelty * * * - 1% * - * - - - - 1% 1% - - Others 56 27 29 2 12 13 9 4 15 8 16 10 22 22 20 14 6% 6% 5% 2% 8% 7% 5% 3% 7% 4% 5% 5% 7% 5% 5% 7% Nothing 107 47 60 18 15 26 14 18 15 12 32 21 41 49 22 36 11% 10% 11% 16% 10% 14% 8% 12% 7% 6% 11% 10% 14% 11% 6% 17% Don't know/Not stated 179 65 114 31 23 23 23 18 55 18 48 38 75 82 76 21 18% 14% 21% 27% 15% 12% 13% 12% 26% 8% 17% 18% 25% 19% 20% 10%

Prepared by TNS System Three Fieldwork : 27th October - 2nd November 2005 Page 3 SCOTTISH OPINION SURVEY - HUMAN RIGHTS : OCTOBER 2005 : 114670

Table 2 Q.2 HOW ADEQUATE IS THE PROTECTION OFFERED BY HUMAN RIGHTS IN SCOTLAND BASE: All Respondents

Total SEX AGE CLASS AREA East/ Male Female 18-24 25-34 35-44 45-54 55-64 65+ AB C1 C2 DE West South North Unweighted base 1018 467 551 102 173 220 156 151 196 139 329 219 331 467 312 239 Weighted base 1017 484 533 115 156 188 176 149 213 215 293 214 295 426 378 213

Insufficient (-1) 237 91 146 18 32 44 47 32 56 39 58 56 84 112 74 50 23% 19% 27% 16% 21% 24% 27% 21% 26% 18% 20% 26% 29% 26% 20% 24% Adequate (0) 502 264 238 65 79 104 80 77 86 118 159 96 129 210 183 109 49% 55% 45% 57% 51% 55% 45% 52% 41% 55% 54% 45% 44% 49% 48% 51% Excessive (+1) 108 67 41 5 16 16 23 20 27 27 31 26 23 47 30 31 11% 14% 8% 4% 10% 9% 13% 14% 13% 13% 10% 12% 8% 11% 8% 14% Don't know 171 62 109 27 28 23 26 19 44 31 45 36 58 57 90 23 17% 13% 20% 23% 18% 12% 15% 13% 21% 14% 15% 17% 20% 13% 24% 11% Mean -0.15 -0.06 -0.25 -0.15 -0.13 -0.17 -0.16 -0.09 -0.17 -0.06 -0.11 -0.17 -0.26 -0.18 -0.15 -0.10 Std. Dev. 0.620 0.609 0.616 0.490 0.606 0.584 0.667 0.632 0.679 0.598 0.588 0.661 0.624 0.632 0.584 0.647 Std. Error 0.021 0.030 0.029 0.054 0.050 0.042 0.057 0.055 0.054 0.055 0.035 0.049 0.037 0.031 0.038 0.044 Error Variance * 0.001 0.001 0.003 0.003 0.002 0.003 0.003 0.003 0.003 0.001 0.002 0.001 0.001 0.001 0.002 19

Prepared by TNS System Three Fieldwork : 27th October - 2nd November 2005 † 129 † 130

Page 4 SCOTTISH OPINION SURVEY - HUMAN RIGHTS : OCTOBER 2005 : 114670

Table 3 Q.3 WHETHER AGREE OR DISAGREE THAT SCOTLAND WOULD BENEFIT FROM A GOVERNMENT FUNDED BODY TO INFORM THE PUBLIC ABOUT HUMAN RIGHTS AND WHICH COULD INVESTIGATE SCOTTISH PUBLIC BODIES ON DEVOLVED MATTERS BASE: All Respondents

Total SEX AGE CLASS AREA East/ Male Female 18-24 25-34 35-44 45-54 55-64 65+ AB C1 C2 DE West South North Unweighted base 1018 467 551 102 173 220 156 151 196 139 329 219 331 467 312 239 Weighted base 1017 484 533 115 156 188 176 149 213 215 293 214 295 426 378 213

Agree 629 278 350 85 109 122 96 87 115 123 173 134 199 276 224 129 62% 57% 66% 74% 70% 65% 55% 58% 54% 57% 59% 62% 68% 65% 59% 60% Disagree 285 170 115 12 31 50 69 55 66 79 90 53 63 115 103 68 28% 35% 22% 11% 20% 27% 39% 37% 31% 37% 31% 25% 21% 27% 27% 32% Don't know 103 36 67 18 16 16 11 8 31 13 30 28 32 35 51 17 10% 7% 13% 15% 10% 8% 6% 5% 15% 6% 10% 13% 11% 8% 14% 8% 20

Prepared by TNS System Three Fieldwork : 27th October - 2nd November 2005 Page 5 SCOTTISH OPINION SURVEY - HUMAN RIGHTS : OCTOBER 2005 : 114670

Table 4 Q.4 WHICH INDIVIDUALS OR GROUPS WOULD BE MOST LIKELY TO BENEFIT FROM SUCH A BODY BASE: All Respondents

Total SEX AGE CLASS AREA East/ Male Female 18-24 25-34 35-44 45-54 55-64 65+ AB C1 C2 DE West South North Unweighted base 1018 467 551 102 173 220 156 151 196 139 329 219 331 467 312 239 Weighted base 1017 484 533 115 156 188 176 149 213 215 293 214 295 426 378 213

Women / Men 162 80 82 21 40 35 28 16 19 29 47 35 50 73 62 27 16% 17% 15% 19% 26% 19% 16% 11% 9% 14% 16% 17% 17% 17% 16% 13% Gay/lesbian 68 36 32 13 15 17 13 7 2 17 20 9 21 39 13 16 7% 7% 6% 11% 10% 9% 8% 5% 1% 8% 7% 4% 7% 9% 3% 7% Children/young people 176 57 119 27 30 38 29 27 21 29 58 31 58 75 78 23 17% 12% 22% 24% 19% 20% 17% 18% 10% 13% 20% 14% 20% 18% 21% 11% Older people 197 73 124 22 32 35 42 23 37 33 61 35 67 95 71 31 19% 15% 23% 19% 21% 19% 24% 15% 17% 15% 21% 16% 23% 22% 19% 15% Victims of crime 117 60 56 12 24 20 22 18 20 23 35 19 39 54 47 16 11% 13% 11% 10% 15% 11% 13% 12% 9% 11% 12% 9% 13% 13% 12% 8% Immigrants/refugees 251 143 108 31 46 46 53 42 32 68 80 50 53 98 103 51 25% 29% 20% 27% 29% 24% 30% 28% 15% 32% 27% 23% 18% 23% 27% 24% Ethnic minorities 239 129 110 30 35 52 51 37 32 63 76 46 54 97 94 48 23% 27% 21% 26% 22% 28% 29% 25% 15% 29% 26% 21% 18% 23% 25% 23%

21 People in trouble with 67 33 34 11 12 24 8 6 5 21 15 13 17 33 23 10 the police 7% 7% 6% 9% 8% 13% 5% 4% 2% 10% 5% 6% 6% 8% 6% 5% People with a disability 166 66 100 16 26 34 35 25 28 32 52 24 58 73 61 31 16% 14% 19% 14% 17% 18% 20% 17% 13% 15% 18% 11% 20% 17% 16% 15% Homeless people 131 62 69 28 24 29 20 15 13 20 38 24 48 62 47 21 13% 13% 13% 24% 15% 16% 11% 10% 6% 9% 13% 11% 16% 15% 13% 10% Gypsy/travellers 43 25 19 5 9 15 5 7 2 7 9 9 18 26 8 9 4% 5% 4% 5% 6% 8% 3% 5% 1% 3% 3% 4% 6% 6% 2% 4% Convicted criminals 83 43 40 9 10 27 7 21 8 19 23 18 23 42 26 16 8% 9% 7% 8% 6% 14% 4% 14% 4% 9% 8% 9% 8% 10% 7% 7% Lawyers 46 32 14 6 6 13 7 10 4 12 14 9 11 17 17 12 5% 7% 3% 5% 4% 7% 4% 7% 2% 6% 5% 4% 4% 4% 5% 6% Everybody/general public 70 22 48 14 12 20 12 2 10 12 20 19 20 31 16 23 7% 5% 9% 12% 8% 11% 7% 1% 5% 5% 7% 9% 7% 7% 4% 11% Working class 11 6 5 1 1 2 2 1 4 - 2 4 5 6 3 2 1% 1% 1% 1% 1% 1% 1% * 2% - 1% 2% 2% 1% 1% 1% People living on 3 - 3 1 - - - - 1 1 1 1 - - - 3 benefits * - * 1% - - - - 1% 1% * * - - - 1% Asylum seekers 12 5 7 1 - 1 3 2 4 4 6 2 - 6 6 - 1% 1% 1% 1% - * 2% 2% 2% 2% 2% 1% - 1% 1% - Under privileged/poor 37 17 20 1 6 5 4 11 11 11 5 7 13 19 10 9 4% 4% 4% 1% 4% 2% 2% 7% 5% 5% 2% 3% 5% 4% 3% 4%

Prepared by TNS System Three Fieldwork : 27th October - 2nd November 2005 † 131 † 132

Page 6 SCOTTISH OPINION SURVEY - HUMAN RIGHTS : OCTOBER 2005 : 114670

Table 4 Q.4 WHICH INDIVIDUALS OR GROUPS WOULD BE MOST LIKELY TO BENEFIT FROM SUCH A BODY BASE: All Respondents

Total SEX AGE CLASS AREA East/ Male Female 18-24 25-34 35-44 45-54 55-64 65+ AB C1 C2 DE West South North Unweighted base 1018 467 551 102 173 220 156 151 196 139 329 219 331 467 312 239 Weighted base 1017 484 533 115 156 188 176 149 213 215 293 214 295 426 378 213

Scottish people 8 5 3 - 1 1 2 - 3 4 2 - 1 8 - - 1% 1% 1% - 1% 1% 1% - 1% 2% 1% - * 2% - - Vulnerable people 12 1 11 4 2 - 5 1 - 3 6 2 1 9 1 2 1% * 2% 3% 1% - 3% * - 2% 2% 1% * 2% * 1% Single parents 8 3 4 2 3 - 2 1 - - 5 1 2 5 1 2 1% 1% 1% 2% 2% - 1% 1% - - 2% * 1% 1% * 1% The unemployed 8 5 4 - 3 3 1 2 - 2 1 2 4 3 5 1 1% 1% 1% - 2% 1% * 2% - 1% 1% 1% 1% 1% 1% * The public bodies 5 2 3 - - 2 - 3 - 3 - 1 1 - 3 2 themselves * * 1% - - 1% - 2% - 1% - * * - 1% 1% Low income families 8 4 4 - 1 3 3 1 - 3 3 1 1 1 5 2 1% 1% 1% - 1% 1% 2% 1% - 1% 1% 1% * * 1% 1% Those in power/ 22 12 10 1 1 3 8 5 4 9 6 4 4 9 2 11 government MPs 2% 3% 2% 1% * 2% 4% 4% 2% 4% 2% 2% 1% 2% 1% 5%

22 Different religions 5 2 3 - - 2 1 - 2 2 1 - 2 - 5 - 1% * 1% - - 1% 1% - 1% 1% * - 1% - 1% - People with a drug 3 2 1 1 - 1 1 - - - 1 1 1 2 1 - problem * * * 1% - 1% * - - - * 1% * * * - Anyone disadvantaged 5 3 2 - 1 1 1 1 1 2 2 - 1 1 - 4 * 1% * - * * 1% 1% 1% 1% 1% - * * - 2% The rich 4 1 3 - - - - 1 3 - 2 1 1 4 - - * * 1% - - - - * 1% - 1% * * 1% - - Schools/education 2 1 1 - - - 1 1 - - 1 - 1 - 1 1 * * * - - - * 1% - - * - * - * * Businesses 2 1 1 - - 2 - - - 1 - 1 - - - 2 * * * - - 1% - - - * - * - - - 1% Families 2 1 1 - - - - 1 1 - 1 1 - - - 2 * * * - - - - * * - * * - - - 1% Others 22 14 8 1 3 3 6 2 5 12 4 2 4 7 9 6 2% 3% 2% 1% 2% 2% 4% 2% 3% 6% 1% 1% 1% 2% 2% 3% Don't know 184 72 113 22 28 30 18 21 57 21 52 35 76 84 70 31 18% 15% 21% 19% 18% 16% 10% 14% 27% 10% 18% 16% 26% 20% 18% 14%

Prepared by TNS System Three Fieldwork : 27th October - 2nd November 2005 Human1.wyp - Tuesday, November 29, 2005 Page 1 Pa TabTitle Base Description Base  1 1 Q.1 WORDS/PHRASES WHICH COME TO BASE: All Respondents 1018 MIND WHEN HEAR THE PHRASE ‘HUMAN RIGHTS’  3 2 Q.2 HOW ADEQUATE IS THE PROTECTION BASE: All Respondents 1018 OFFERED BY HUMAN RIGHTS IN  4 3 Q.3 WHETHER AGREE OR DISAGREE THAT BASE: All Respondents 1018 SCOTLAND WOULD BENEFIT FROM A GOVERNMENT FUNDED BODY TO INFORM THE PUBLIC ABOUT HUMAN RIGHTS AND  23 5 4 Q.4 WHICH INDIVIDUALS OR GROUPS BASE: All Respondents 1018 WOULD BE MOST LIKELY TO BENEFIT FROM SUCH A BODY † 133 2413 7 DECEMBER 2005 2414

and young people. In other words, the human Scottish Parliament rights commissioner will be independent and accountable to the Parliament rather than to Justice 1 Committee ministers. He or she will not be subject to direction from the Parliament, except on specified Wednesday 7 December 2005 procedural and administrative matters that are detailed in the bill. For example, the Parliament [THE CONVENER opened the meeting in private at will give consent to the number of staff and the 09:52] location of the commissioner’s offices. The commissioner will be required to submit to the Parliament annual reports on his or her activities, 10:53 as well as reports on any inquiries that he or she may conduct. Meeting continued in public. I turn briefly to structure and funding. It is Scottish Commissioner for proposed that there will be one commissioner and Human Rights Bill up to two deputy commissioners. The commissioner will be appointed by Her Majesty on The Convener (Pauline McNeill): Good the nomination of the Parliament. A similar model morning. I welcome everyone to the 40th meeting was adopted for the commissioner posts that have in 2005 of the Justice 1 Committee. We have one already been established. In addition, the bill apology today from the deputy convener, Stewart provides that the commissioner will have a chief Stevenson. executive. Although the commissioner’s office will be funded by the Parliament, the Executive has Item 2 is consideration of the Scottish announced that it will provide the Parliament with Commissioner for Human Rights Bill. I welcome an additional £1 million per year, starting in 2006- the bill team: Brian Peddie, Ed Thomson, Ross 07, to cover the commissioner’s costs. Truslove and John St Clair. Brian Peddie will make a brief presentation to the committee. I ask for a It is proposed that the commissioner’s remit will presentation of no more than 10 minutes’ length, cover all the international human rights which is our usual time limit—we never have instruments that the United Kingdom has ratified, enough time for these things—before we move on but the bill states that the commissioner will be to questions from the committee. required to have particular regard to the European convention on human rights. The reason for that is Brian Peddie (Scottish Executive Justice that the ECHR is the only instrument that is Department): Members should have a copy of the directly enforceable in Scots law under the Human main presentation headings, which summarise the Rights Act 1998 and the Scotland Act 1998 and is main points of the bill. Perhaps unsurprisingly, therefore the one that is of greatest legal given the bill’s title, its purpose is to create a importance to public authorities and to the public Scottish commissioner for human rights. The at large. The remit will cover devolved matters, but commissioner will have a promotional and will not extend to reserved issues. awareness-raising role, rather than an enforcement role. The commissioner is to operate under the general duty It may be helpful if I give the committee a little background information. In 2001, the Executive “to promote awareness and understanding of, and respect for, human rights and, in particular— conducted a public consultation on whether Scotland should have a human rights commission (a) to encourage best practice in relation to human rights, and, in December of that year, announced that and such a commission would be established. A (b) to encourage Scottish public authorities to comply commitment to establish a human rights with section 6 of the Human Rights Act 1998”, commission was then included in the partnership which is the provision that places a legal duty on agreement. A further consultation by the Executive public authorities to operate in compliance with the in 2003 set out the main elements of the proposals ECHR. Section 3 of the bill seeks to place a and sought public comment on them. An analysis specific duty on the commissioner to keep under of the responses to that consultation was review the law of Scotland and the policies and published in May 2004. practices of public authorities. The commissioner From the point of view of accountability, the will be able to recommend changes to the law and commissioner will be similar to other those policies and practices on the basis of such commissioners that have been established post- review. devolution, such as the Scottish information The bill seeks to establish an information-giving commissioner and the commissioner for children function, under which the commissioner will be

24 †134 2415 7 DECEMBER 2005 2416 able to disseminate information and ideas, provide to human rights as the proposed Scottish advice or guidance, conduct research or provide commissioner. The GB commission will also have education and training. To enable the a role in connection with equality issues, such as commissioner to perform his or her functions race discrimination, in relation to which it will take properly, the bill proposes giving him or her a over the enforcement role of the existing equality number of powers. In particular, the commissioner commissions. Essentially, however, such matters will have the power to conduct inquiries into the are reserved. They are separate from the human policies or practices of Scottish public authorities rights function, although there is a certain degree and will be able to require the provision of of interface between human rights and equality information for the purpose of such inquiries. For issues. example, someone could be required to give oral The GB commission will be accountable to evidence. The commissioner will also have legal United Kingdom ministers, not to the Westminster power to gain access to places of detention such Parliament. It is expected that the GB commission as prisons for the purpose of conducting an will not assume its functions before October 2007. inquiry. That was not part of the Executive’s The relationship between the Great Britain original proposals for the commissioner as commission and the proposed Scottish published for public consultation. However, in the commissioner has given rise to significant course of considering the responses to the discussion and comment and is seen as an consultation and developing the proposals for the important component of the proposals here and bill—as well as taking into account the experience south of the border. of the Northern Ireland Human Rights Commission, for which the issue became The Great Britain commission will have a significant—it was felt that it would be helpful for Scotland committee, and the Government the commissioner to have such an explicit power announced last week that the main Scottish office of access. of the Great Britain commission will be in Glasgow. The GB commission will deal with reserved human rights issues in Scotland, while 11:00 the Scottish commissioner will deal with devolved The commissioner will also have the power to issues. However, they will be expected to work intervene as a third party in court proceedings. closely together on issues of mutual interest that That goes wider than the original proposals, which might involve both devolved and reserved aspects. mentioned the ability to intervene in court It is expected that the GB commission and the proceedings in a rather more restricted way and Scottish commissioner will enter into a specifically in connection with judicial review memorandum of understanding that will set out the proceedings. The proposals as set out in the bill arrangements for such co-operation. apply to all civil proceedings, except for children’s hearings. The commissioner’s ability to intervene It is also worth mentioning that, according to the in court proceedings will not be restricted to provisions of the Equality Bill, the Great Britain judicial review proceedings. commission will not be able to look at a devolved human rights issue or otherwise exercise its A brief word on what the commissioner will not functions in connection with such an issue without be able to do under the proposals may be helpful. the consent of the Scottish commissioner. He or she will not be able to investigate complaints by individuals; to bring legal actions for alleged Co-operation with other bodies is also seen as a breaches of human rights in his or her own name; key part of the role of the Scottish commissioner to provide support for individuals who bring cases; for human rights, as is the case with the GB or to enforce legally the findings of commissioner commission. The bill would give the Scottish inquiries. We expect inquiry reports and commissioner a general power to consult and co- recommendations to have considerable force, but operate with “any other person”, which would not to the extent of being legally enforceable: include not only the GB commission but other authorities will not have to comply legally with any relevant interests such as the commissioner for findings. That is because the essential vision for children and young people. The Scottish the commissioner is that he or she will have a commissioner could enter into memoranda of promotional and awareness-raising role, but not understanding, or similar arrangements, with such an enforcement role. other parties in order to set out arrangements for co-operation. The bill will place a duty on the It may also be helpful if I were to say something commissioner to avoid duplication of the activities about the proposed Great Britain commission—the of other parties. commission for equality and human rights—that will be set up under the Equality Bill, which is At this point, that is all I want to say about the being considered at Westminster. The GB main headings of the bill. I am happy to take commission will have similar functions with regard questions.

25 †135 2417 7 DECEMBER 2005 2418

The Convener: Thank you—that was a helpful Brian Peddie: There is already a mechanism for summary. the enforcement of human rights through the legal system. Rights under the ECHR are directly Mr Bruce McFee (West of Scotland) (SNP): I enforceable in Scots law. If people feel that their will direct my questions at Mr Peddie, whom I rights have been breached, they can take their thank for his paper. I will cut straight to the chase: case to court. Whether giving the commissioner why do we need a Scottish commissioner for direct enforcement powers would add any value is, human rights at all, particularly given that their to be frank, questionable, when there is already a powers will be promotional only? well-established mechanism for people to enforce Brian Peddie: Human rights are at the heart of their rights through the legal system. The bill is the devolution settlement. As I said, there is a more about ensuring that people and authorities legal duty on public authorities, Scottish ministers know what those rights are, in the hope that and the Parliament to act in compliance with the helping authorities to be more ECHR compliant European convention on human rights. It is will avoid, or at least reduce, the need for any therefore important that public authorities are fully enforcement action. aware of what that means for them and of what The Convener: I take the point that the primary their obligations could be. Similarly, the public at role of the commissioner will be to promote large should be aware of what it means. We must awareness of human rights. That covers a whole retro-inform them about their rights and about how range of areas. To your knowledge, has the they might go about enforcing them. Executive identified any failings so far? The Executive’s proposals were very much You mentioned a number of other commissions about the commissioner being part of the process that deal with equal rights in areas such as race. of creating a human rights culture in Scotland. People have also used the legal system to That ties in with wider activities—for example, challenge criminal procedures using the ECHR. I activities on the equality front in connection with believe that more than 300 cases are going anti-racism and anti-sectarianism and activities through the courts on the ground that criminal that are anti other forms of discrimination. All such procedures may have contravened people’s activities have human rights aspects. human rights. Recently, Lord Bonomy made a Mr McFee: So we just need somebody to inform notable judgment on slopping out. It seems that us about the issue and to advise public bodies. human rights issues appear daily in our courts. There is nothing more than that. Where are the existing bodies and forums for challenging human rights failing? Brian Peddie: No, I think that the bill goes further than that. The bill will give the Brian Peddie: First, it is clearly important to commissioner the ability to conduct inquiries into have a legal mechanism that enforces convention particular issues. I mentioned the duty on the rights, and that is what we have at the moment. commissioner to keep the law and policies and However, it is not necessarily the most effective or practices under review. The commissioner will efficient mechanism for ensuring that public therefore be able to consider specific areas that he authorities comply with human rights in everything or she, or others, feel are of concern or are that they do, as it depends on individuals taking significant. The commissioner will be able to make cases through the courts. To secure compliance, it recommendations on how practices in a particular would be more efficient to assist authorities with area might be improved so as to comply better their efforts to comply and therefore, one hopes, to with human rights requirements. reduce the number of challenges that arise in the first place. The bill is not only about general awareness raising. The commissioner will be able to focus You quite rightly mentioned the number of cases clearly on specific areas and to make that have been brought before the courts, but it is recommendations to public authorities on how to relatively small compared with the total volume of improve their activities. court cases. Some predicted a flood of human rights cases immediately after devolution, but that Mr McFee: If we believe that there is a need for has not materialised. There have been some a commissioner—and I assume that the Executive important cases, including those on slopping out. has established that there is such a need—why However, it is better to see the whole picture. The will we require the commissioner only to comment points about legal enforcement through the courts or to make recommendations, without giving them are important, but that is not the only, and may not any powers of enforcement? Why are we be the best, way to ensure that all authorities meet establishing a commissioner rather than a their obligations. commission, and, if the role is so important, why will the commissioner not have powers of The Convener: A human rights commissioner enforcement? might work with the Scottish Prison Service, for instance, if they took the view that slopping out 26 †136 2419 7 DECEMBER 2005 2420 contravenes human rights. Is that the kind of area interests out there in different sectors. Perhaps a that is envisaged? key difference in respect of the commissioner for human rights is that he or she will not be restricted Brian Peddie: That would be possible, given to a particular sector of activity but will be able to that the SPS is a public authority. consider the human rights implications of a whole The Convener: It is helpful to get examples, but range of activities. For instance, the commissioner that was not a particularly good one. Her Majesty’s might look at a housing issue. Human rights chief inspector of prisons has done a good job so issues that might arise in that area might also far of bringing to the Parliament’s attention his arise in other areas of activity. The commissioner repeated and consistent view that slopping out is will be able to take a broader view than a purely fundamentally wrong. I cannot remember whether sectoral body, such as a housing ombudsman, he said that slopping out is a direct breach of might take. human rights legislation, but many members have The Executive has said that it expects the supported his view and have felt that the appointment to be made on a full-time basis. That Executive should have acted quicker. Regardless decision is not one for the Executive to make, but of whether slopping out contravenes human rights one of the provisions in the bill is that the law, most of us think that it is inhumane. It is commissioner cannot hold any other office or perhaps not a good example, but it might help the employment without the consent of the Parliament. committee to identify the kinds of areas on which The clear indication is that the job is expected to the commissioner could work. However, would be full time. that work duplicate mechanisms that already exist? The Convener: Bruce McFee will need to be brief. Brian Peddie: I appreciate your point. Some time ago, the Executive conducted what was Mr McFee: I am more than happy to be brief. effectively an audit to identify areas that might give Is it not already the case that local authorities rise to possible human rights concerns. We are are required to comply with human rights not sure whether local authorities have done legislation? Is it not also the case that there is a anything similar. The definition of public prospect of considerable crossover or duplication authorities, of course, includes local authorities between the work of the commissioner and that of and other bodies that are not part of the Executive. local authorities? Clearly, their services and the things that they do for their communities can raise human rights Brian Peddie: The commissioner will not issues. A significant part of the commissioner’s duplicate the work of the local authorities, given role will be to reach those parts of the public that he or she will not deliver services in the way sector that so far may have not received the same that local authorities do. Clearly, there is— attention as particular areas of Executive activity, such as prisons, have received. In the absence of Mr McFee: I was not suggesting that; I was a commissioner who has done that kind of work talking about the commissioner overviewing what and in the absence of studies produced by local a local authority does, to ensure that it is authorities, it is rather hard to give specific compliant. examples. However, examples might include Brian Peddie: That is certainly true. During the discrimination in the provision of local authority Executive’s consultations, which involved local services, such as housing, or in the treatment of authorities, a number of authorities said that they people in hospitals or care institutions. would actively welcome being able to obtain advice from a human rights commissioner as that would assist them in becoming more aware of 11:15 what their obligations mean in practice and how Mike Pringle (Edinburgh South) (LD): On that they can adapt their policies and practices to point, if someone wants to complain about become more compliant. housing, they can now go to the Scottish public services ombudsman. Another important point is that the Scottish commissioner for human rights will be The convener talked about Dr McLellan, who independent. That is the case precisely because looks at prisons, and various other institutions. he or she will not be responsible for the provision Surely an awful lot of the proposed of services. The commissioner will be accountable commissioner’s functions are already carried out only to the Parliament; he or she will therefore by an awful lot of the people who work in the bring to bear an independent perspective that will human rights area. Will the job of the Scottish add to any scrutiny that local authorities commissioner for human rights be full time? themselves might undertake. Brian Peddie: As you rightly say, there are a number of commissioners, ombudsmen and other 27 †137 2421 7 DECEMBER 2005 2422

Some authorities have undertaken some work, we will disseminate information and educate; it but other authorities have not—or at least they would be nice to have an idea of how we will do have not done so to the same extent. that. Mr McFee: Could you put that into context? I Brian Peddie: A specific example might be would not like this to be represented as— helpful. The Executive is already funding a non- governmental organisation—Human Rights The Convener: Bruce, we do not have time. Scotland, which used to be called the Scottish Mr McFee: I wanted to check the statement that Human Rights Trust—to provide voluntary sector local authorities are in favour of the proposal. The staff with education and training in human rights evidence is that their support is far from universal. issues so that they are better able to take such matters into account in dealing with their clients. The Convener: I am sorry, but I need to move That work has been deemed to be successful on. because of the numbers of people who are going Mr McFee: I understand. for the training and the interest that has been shown in it. I understand that it is now going The Convener: I allowed you time to ask a brief beyond the voluntary sector and that people from supplementary—you took advantage of me. other sectors are also taking part. The running of Margaret Mitchell (Central Scotland) (Con): training courses on human rights is a specific My colleagues have established that the example, but the Executive undertakes similar commissioner will not have any enforcement activity to inform its staff about human rights so powers, but will have the power to monitor the law; that they are better taken into account in the practice and policy of public authorities; development of policies. That will ensure that promote awareness; disseminate information and policies are convention-rights compliant. ideas; and even—in some circumstances—require Margaret Mitchell: Are we to assume that information. Is there a danger that it will be a huge education, awareness raising and dissemination of paper-pushing exercise that will, instead of being information will be limited to a memo going round of advantage to the public and private sector that says, “We have great training courses that will bodies that are trying to get on with their business, tell you all about human rights and get you right up land them with yet more bureaucracy and to speed with them”? regulation? The commissioner will have no teeth whatever, so how will he or she enforce a principle Brian Peddie: There will have to be far more or attend to a breach of human rights? than circulation of a memo. There are real issues with measuring the effectiveness of such activities, Brian Peddie: The added bureaucracy and because human rights is a soft area in which it can paper chasing would be much more acute if the be difficult to develop measures of activities’ commissioner was to have an enforcement role, effectiveness. Nevertheless, it is important that but that is not proposed. The bill would not add to such activity be engaged in. It is not only about the existing substantive human rights obligations telling people about human rights; some kind of on public authorities. The only additional follow-up is required to ensure that human rights obligations would be to respond to requests for are being taken into account. If one is running information from and reports by the commissioner, training for staff in an authority or a particular for example, but that is a small load compared sector, it might well be appropriate to revisit them with what compliance with human rights means for a year or three down the line to try to ascertain the activities of local authorities or other public what effect the training has had on service delivery authorities. Part of the objective is that the and policy development. commissioner should help public authorities to improve their awareness of their obligations and Margaret Mitchell: I will leave that line of how to comply with them and, therefore, possibly questioning, but I am far from satisfied that we to reduce bureaucracy rather than increase it. have a clear picture of how many pieces of paper and e-mails will cross people’s desks and end up Margaret Mitchell: I am puzzled by that. You detracting from their core purposes in service suggest that, if the commissioner had enforcement provision and enterprise. I really would like more powers, more paper pushing would go on. How do on that at some time. you intend to educate public authorities and private business and to disseminate information How were the powers that are intended for the and ideas to them? commissioner arrived at? You mentioned that the ECHR is overarching legislation to which you have Brian Peddie: Precisely how the commissioner to adhere, but what account did you take of the would go about that would be a matter for the Paris principles in determining the commissioner’s commissioner, not for us. proposed powers? Margaret Mitchell: Are there any ideas about that? We have a bill in front of us and it is said that 28 †138 2423 7 DECEMBER 2005 2424

Brian Peddie: We took close account of the Brian Peddie: The Paris principles mention Paris principles in developing the proposals, independence from Government as being one of because the Executive wishes the commissioner the key principles of a human rights institution. to be perceived as an effective human rights The other people whom you mentioned are not institution and, potentially, to secure accreditation concerned solely with human rights, but are clearly as such at the United Nations, which I understand seen as having an independent role. However, the the Northern Ireland Human Rights Commission, fact remains that not having a direct enforcement for example, already has. function is not incompatible with the role of The Paris principles are not a detailed blueprint; promotion and protection of human rights. The they set out guiding principles that are broadly Paris principles do not contain a specific acknowledged as being appropriate for the expectation that a human rights institution should establishment and operation of human rights have legal enforcement powers. That is not in the institutions. However, that is not to say that the list of key features that are looked for in human Paris principles are the end of the story or that rights institutions. they are necessarily perfect; it has been Mr McFee: The commissioner will deal with suggested that they focus unduly on the strictly matters that fall within the devolved remit, but I legal aspects of an institution’s powers and role. understand that, under the Equality Bill that is Nonetheless, it is widely recognised that they are going through the UK Parliament, the commission sensible guiding principles for the establishment of for equality and human rights will have human rights institutions, which is why the enforcement powers—the bill makes provision for Executive paid close regard to them in developing such powers in relation to notices and action the proposals. plans. In other words, if human rights have been Margaret Mitchell: Promotion and protection of breached in relation to a reserved matter, the human rights are key principles, but the protection appropriate body will have enforcement powers, angle has been left out. What is the rationale but if human rights are breached in relation to a behind that? devolved matter, the appropriate body will not have such powers. Brian Peddie: That is true, but that does not necessarily mean that human rights institutions Brian Peddie: It is important to differentiate are necessarily expected, under the Paris between the equality and the human rights principles, to have a direct enforcement role. aspects of the Great Britain commission’s remit. Several human rights institutions throughout the As I said, on equality, the Great Britain world do not have such a role. commission will take over the enforcement role Margaret Mitchell: What is your rationale for that is presently carried out by statutory bodies leaving out that role? such as the Commission for Racial Equality. Clearly, it will have an enforcement role, because Brian Peddie: As I said, a legal mechanism that role already exists under equality legislation. already exists for enforcement of human rights in The references to items such as action plans domestic courts, which includes being able to relate to the equality side of the remit rather than challenge acts of Parliament and acts of the human rights side. Government. Therefore, it is questionable whether a separate legal enforcement power for the human rights commissioner would add significant value. 11:30 Under the Paris principles, the prime role of Mr McFee: You are telling me that if the Scottish human rights institutions is to promote awareness Commissioner for Human Rights Bill and the of and respect for human rights. That has been the Equality Bill go through in their present form, there guiding principle behind the proposals in the bill. will be no enforcement procedures for dealing with Margaret Mitchell: I am a little puzzled by that. human rights matters, whether they are devolved You say that the promotion aspect is right up there or reserved, other than recourse to court. and that we have other people who can do the Brian Peddie: Do you mean recourse to court protection bit. In response to a question from—I by individuals? think—Bruce McFee, you said that some of the people who would do the protection work, such as Mr McFee: I mean recourse to court by Her Majesty’s inspectorate of prisons or other individuals or organisations. ombudsmen, are directly responsible to ministers. Brian Peddie: There is a difference between the You almost suggested that there is less two proposed regimes. A provision that was not independence. The commissioner will be part of the original proposals for the GB responsible to Parliament and will, therefore, be commission but was introduced quite late on in the more independent. Does not that translate into the passage of the Equality Bill would indeed give the argument that the commissioner should have an GB commission the power to bring legal enforcement role? proceedings in its own name in connection with 29 †139 2425 7 DECEMBER 2005 2426

alleged breaches of human rights. On that Mike Pringle: In your answer to Margaret particular point, there is a difference. Mitchell, you suggested that you had found examples of other countries and Governments that Mr McFee: It is a substantial difference. had set up a commission or commissioner that Brian Peddie: I would not argue with that; it is a would carry out a similar function to the one that substantial difference. The Executive’s proposals will be performed by the proposed Scottish do not provide for the Scottish commissioner commissioner. I would be grateful if you could having that role for two main reasons, one of furnish the committee with that list of countries. which is legal and one of which is broader. The Brian Peddie: We will provide that list. legal reason is based on what is normally known as the victim test, whereby a legal action for an Mike Pringle: I want to ask one or two alleged breach of human rights can be brought questions about inquiries, which are dealt with in only by the victim of that breach. Under the sections 5 to 10 of the bill. It seems that the Human Rights Act 1998, that right is restricted to commissioner will be able to carry out only a the victim of such a breach, and because highly restricted range of inquiries. The amendment of that act is a reserved matter under restrictions, as set out in section 6, on the scope of the Scotland Act 1998, it was felt to be outwith any inquiry are extensive. devolved competence to give the Scottish Section 6(2) says: commissioner an ability similar to that which is now proposed for the GB commissioner. “The Commissioner may conduct an inquiry into the policies and practices of a particular Scottish public The wider reason is that, in any event, the vision authority only if … the authority is the only Scottish public for the Scottish commissioner is that he or she will authority with functions in relation to the subject matter of play what is essentially a promotional and the inquiry”. awareness-raising role. I mentioned that the GB I was a local councillor for 10 years, and I am commission would play an enforcement role on trying to think of an example in which a Scottish equality legislation, which in practice will probably public authority had a function that none of the account for the bulk of its work. From the outset, other 31 local authorities had. the GB commission was always going to have a legal enforcement role, which the Scottish Brian Peddie: The example that immediately commissioner was not going to have. It remains springs to our minds clearly does not relate to the Executive’s view that to give the Scottish local authorities. One might think of the state commissioner the ability to raise legal actions in hospital at Carstairs, which I think is the only his or her own right would detract from the vision institution or authority in Scotland that operates as of the commissioner having a promotional and it does in its particular area. That is not to say that awareness-raising role. there are necessarily a large number of such examples, but they do exist. If, for instance, the If the commissioner had the ability to raise legal commission wanted to examine human rights actions, that would create expectations that that aspects of the care and treatment of severely role would be exercised to a significant extent, mentally ill people who are detained in secure which could detract from the other areas of the institutions, it would look at Carstairs. Because the commissioner’s activity. The fact that people state hospital is the only authority that runs such would expect the commissioner to be going to the an institution, it is of necessity the only one that courts on various issues all the time would mean the commissioner would look at. That is the sort of that the commissioner would not be able to devote situation that is referred to. as much time and resources to what we consider to be the main parts of the remit. Mike Pringle: Yes, but the bill talks specifically about Mr McFee: You would regard taking a test case to court as being a fairly unimportant part of any “a particular Scottish public authority”. commissioner’s remit, if indeed the commissioner I am sorry—I had been taking that as covering had powers that permitted that. local authorities. I accept the point. Brian Peddie: If you are asking whether I think I turn to my second question, which was raised that bringing test cases would in itself be by the Disability Rights Commission following its unimportant, I would not necessarily say that it investigations. Its reading of the bill is that the would. I am really saying that there is already a commissioner would be able to investigate only mechanism for doing that in the domestic courts, matters that relate to torture. Is that the way that so there is no need to give the Scottish you see it? commissioner such a role, especially as it is thought that the Scottish commissioner will have a Brian Peddie: No—that is not the way we see it. promotional and awareness-raising role and that it The reason why the two conventions against should focus on that. torture are specifically mentioned in section 6 is

30 †140 2427 7 DECEMBER 2005 2428 fairly technical. I apologise for that. The starting may have been raised, but not about examining point in the bill is that the reports of any inquiries the conditions in which a person is held because that are conducted by the commissioner will be they have complained. The process is more published. However, it is envisaged that it is at generally focused. For practical reasons, 14 days’ least possible that the commissioner might notice should be given to ensure that an institution undertake inquiries as part of monitoring of is sufficiently aware that the commissioner is going compliance with, let us say, the United Nations to visit. That is in no way to suggest that a cover- Convention against Torture and other Cruel, up would be going on. However, from experience Inhuman or Degrading Treatment or Punishment, elsewhere I know that there have been occasions at the request of the relevant international body. In when people who ought to have been given that case, the commissioner would essentially be access to prisons have not got or have had conducting the inquiry in accordance with the difficulties getting such access, simply because expectations of that international body, but that the staff on the ground were not told that they body would be responsible for publishing a report; were coming and were therefore reluctant to let the commissioner would not publish a report them in for security reasons. The 14 days’ notice separately. is to ensure that arrangements can be made and proper access given. Ed Thomson (Scottish Executive Justice Department): Section 6(6) refers to the optional Mike Pringle: Let us take the example of protocol for the convention against torture, which someone who approaches the commissioner and allows each member state to designate bodies says that they think that there has been a serious under their jurisdiction as national preventive breach of their human rights, which the mechanisms, which will undertake inspections of commissioner decides to investigate. After the places of detention on behalf of the UN Committee commissioner has examined the matter in private, against Torture. he may decide that he needs to visit the prison. We are saying that he needs to give the prison 14 Subsection (6) effectively allows a space within days’ notice so that it can ensure that it can the inquiry function to let the Scottish identify him correctly. I presume that everyone commissioner fulfil that national preventive would know the commissioner and that he was mechanism role on behalf of the UN, fully in interacting with prisons, in any case. Is the accordance with the standard procedures of the suggestion that if the commissioner knocks on a UN committee. The difficulty lies in the fact that, as prison door and wants to ask questions about Brian Peddie was explaining, there is a conditions in respect of a person who wants the requirement for the commissioner to publish commissioner to investigate his human rights, the reports of its inquiries, but publication of UN prison will be able to say that the bill says that he reports is often delayed. The inquiries are must give 14 days’ notice? undertaken in confidence, and the reports are then submitted. The UN committee works in confidence Brian Peddie: In practice, we would expect the until the full range of hearings has taken place. commissioner to establish a close working Only then is all the relevant documentation relationship with other bodies, such as prisons. It published. If we were to create such a space, is possible that, in practice, 14 days’ notice would there might be a problem in that the Scottish not be required. However, we are talking about the commissioner would be required to publish his commissioner being able to enforce a legal right of report in advance of the UN package. That would entry. We thought that it was appropriate to allow run contrary to the general expectations of how 14 days to elapse before the commissioner sought such things work. As Brian Peddie says, this is a to exercise that right. In practice, the largely technical issue, but I hope that that has commissioner may often get access sooner, but in cleared it up a little. the context of the legal right to entry, it seemed reasonable to introduce a period of notice of 14 Mike Pringle: My third question relates to days. We should remember that failure to comply section 8, which is on “powers of entry, inspection with such a request can enable the commissioner and interview”. I suppose that this is a simple to go to court to seek enforcement of that legal question. Why is 14 days’ notice required? That obligation. Such situations are potentially serious, seems a very long time. If someone thinks that an so it is entirely appropriate that there be a period abuse is going on somewhere, they will surely of notice before an institution or authority might be want to be in on it as quickly as possible. accused in court of having failed to allow the Brian Peddie: I understand that point, but it is commissioner to exercise their legal right of important to remember that inquiries are to be access. general in nature. I think that the phrase in the Mr McFee: Section 6(8) of the bill defines an consultation paper was “generic or sectoral”. “institution”. I do not think that there is a similar It is not about investigating individual definition of “Scottish public authority”. It would be complaints. It is about considering concerns that useful if you could briefly give us some information 31 †141 2429 7 DECEMBER 2005 2430

on that. Section 6(3) of the bill states: Mr McFee: So, are we saying that institutions— “The Commissioner may not conduct an inquiry into the The Convener: I think that you have had a go at policies and practices of any Scottish public authority in that—three goes, in fact. I want to go back to Mike relation to a particular case.” Pringle’s question. I thought that your He or she may take up a particular case in an supplementary question was going to be on the 14 institution, but not in a Scottish public authority. If days issue, which concerns me a wee bit. someone is at a local authority nursery, which is If the committee against torture can get an institution according to the definition in the bill, immediate access, why are we stipulating 14 days’ the commissioner can take up their case, but if a notice? If you have incorporated the convention case relates to the housing department of a local against torture into the powers of the authority, he or she cannot. What is the rationale commissioner, a wait of 14 days seems to be— behind that? Brian Peddie: The committee against torture Brian Peddie: I do not think that your does not turn up unannounced at a prison. The explanation is correct. The provision that an respective government will know weeks, if not inquiry should concern policies and practices, months, in advance what the programme of visits rather than the case of an individual person, is going to be. applies equally to inquiries into institutions and inquiries into public authorities. The Convener: So, the UN committee against torture cannot turn up unannounced. If that Mr McFee: Section 6(3) does not say that. It committee suspected that torture was going on at refers to a “Scottish public authority”. Section 6(8) Barlinnie prison, it would want to go there goes on to define an “institution”. immediately. If it had to wait 14 days, any evidence of torture could be cleared away. Do you 11:45 not see a problem in that? Brian Peddie: The overall power to conduct an Brian Peddie: It should be remembered that inquiry, which is defined in section 5(1), would be inquiries will be held into policies or practices used to conduct an inquiry into the policies and rather than into individual complaints. Those are practices of a public authority rather than into an not the kind of things that could be swept under institution. The point about institutions takes us the carpet even in 14 days. Let us take the back to the earlier discussion about international example of slopping out. If the commissioner said conventions. The UN committee against torture, that they wanted to go to a specific prison to see for instance, would probably stipulate which places how slopping out operated in that prison, the it would expect the commissioner to visit as part of prison would not end slopping out within 14 days his or her monitoring activity. The committee just because of the commissioner’s visit; slopping would say that the commissioner should visit out would still happen. It would also be open to the Barlinnie jail, Aberdeen prison and the police cells commissioner to ask for access sooner than that. in Pitt Street, or something like that. It is that sort We are talking purely about the legal right of of activity that we are talking about. access that is enforceable by going to the courts. Mr McFee: I am sorry to press you, but there is The Convener: The reality is that any member a specific definition in section 6(8). It states: of this committee would be unlikely to be turned “In this section, ‘institution’ means a prison, hospital, away from Barlinnie prison if we wanted to go in to school, college, care home or other such establishment.” see whether there was evidence of torture. Andrew McLellan, the chief inspector of prisons, Are you saying that all the institutions are Scottish would not be turned away either. I understand that public authorities? If not, what is the difference we are talking about a power of entry for which and why is a distinction made in section 6(3) as to there is usually a legal period before a warrant can where specific cases can be inquired about? be obtained but, using prisons as an example, it Ed Thomson: Perhaps I can clarify the matter. seems a bit odd. It is unlikely that I would be The definition of “institution” in section 6(8) is not turned away from Barlinnie if I wanted to see what intended to be read as a definition of a different was going on there. type of body from Scottish public authorities. In Brian Peddie: It is unlikely that the human rights that context, institutions are the kind of places that commissioner would be turned away, either. are run by Scottish public authorities. For example, the inquiry would be into the Scottish The Convener: Yes, but he or she might have a Prison Service as the Scottish public authority, but problem if the bill were to insist that an application the power of access to institutions would relate to be made 14 days in advance for a warrant or a specific prison such as Barlinnie. The two are permission to inspect the premises. It would not meant to be read as exclusive groups. almost be better not to have it.

32 †142 2431 7 DECEMBER 2005 2432

Brian Peddie: I do not think that it would be Children’s hearings are specifically exempted. better not to have the provision. Do you mean that As regards the domestic legal definition, we it would be better not to have the time limit? understand that children’s hearings are classified as civil proceedings. However, they have some of The Convener: I agree that if the human rights the characteristics of criminal proceedings and, in commissioner were to turn up at a prison because particular, children’s hearings can impose they suspected that torture was being carried out mandatory supervision requirements on children there, it would be unlikely that they would be and to that extent they can be regarded as being turned away, but I am not sure about having the more akin to criminal proceedings. requirement to give 14 days’ notice in the bill. It is important to recognise that in considering Brian Peddie: The requirement to give 14 days’ whether proceedings are civil or criminal for notice is about the exercise of the legal power. It is human rights purposes, the European Court of about the commissioner going to the institution or Human Rights at Strasbourg has established that the authority and saying, “I am exercising my legal it would look at the entire context of the power to obtain access.” That does not preclude proceedings and their nature and would not be the commissioner going on an informal basis, as bound by their classification under domestic law. the prisons inspector or prison complaints The arguments against extending the power to commissioner would do, and saying, “I want to intervene to children’s hearings were that they visit such-and-such a prison this afternoon or were regarded as more analogous to criminal tomorrow.” We would expect that, in practice, the proceedings. However, we appreciate that commissioner would obtain access. differing views on the matter have been The requirement to give 14 days’ notice will give expressed, by the Scottish Children’s Reporter the commissioner a legal power to enforce access Administration, for example, so there will be in what we expect to be rare cases—if they occur discussion of that. Nonetheless, that was the at all—where the commissioner encounters reasoning that was applied. difficulties with access or thinks that there might Mrs Mulligan: Will you also answer my question be such difficulties and therefore wants legally to about the public interest test? enforce the right of access. If the commissioner had to make use of that legal power to obtain Brian Peddie: It seems entirely right that there access on anything like a regular basis, some should be a requirement to satisfy some kind of serious questions would be asked about the test whereby the commissioner decides whether it authority concerned. is appropriate to intervene in a case. Mrs Mary Mulligan (Linlithgow) (Lab): Your Under the bill, the final decision on whether an introductory comments were helpful, but we have intervention should be allowed will rest with the a number of points of clarification. My question is court, which will also have the discretion to invite about the power to intervene in civil legal an intervention from the commissioner. The proceedings, which is outlined in section 11. Do criterion for the court’s decision is simply that the you agree that the scope to intervene is quite court narrow? For example, not even children’s hearings “is satisfied that the intervention … is likely to assist the are included. Section 11 states that the court.” commissioner could intervene where matters are deemed to be in the “public interest”. Who would A separate public interest test is not specified as decide whether a matter was in the public interest a criterion for consideration by the court because it and on what grounds? seems right for courts to take into account only whether an intervention would help the court. It Brian Peddie: I do not accept that restricting to would seem strange if the commissioner could civil proceedings the power to intervene means offer to intervene in a case that involved no issue taking a narrow view; it is a wide view because the of public interest because, otherwise, there would power relates to the full range of civil proceedings. be no rationale for intervention. The case needs to I will come back to the point about children’s involve a matter that is relevant to the hearings. commissioner’s wider remit. Similarly, one cannot We are talking about any proceedings that might readily envisage situations in which a court might be raised in the civil court. The power is not feel that it was in the public interest for the restricted to proceedings for judicial review, which commissioner to intervene even though that would is a common mechanism but not the only one for not assist the court. It seems appropriate that the seeking enforcement of human rights. For only criterion that the courts should apply is example, not all the slopping-out cases that were whether an intervention would help the court. taken to court involved judicial review. However, if we required the court to consider a Nonetheless, the commissioner could offer to separate public interest test, the court might need intervene in such proceedings. to hear separate arguments from both sides of the

33 †143 2433 7 DECEMBER 2005 2434

case on whether an issue of public interest was 12:00 involved. That could protract the proceedings and Brian Peddie: I do not know the figures, but it involve extra costs. Conversely, whether an would not surprise me if you were right about the intervention would assist the court is a question number of cases. The tribunals deal with reserved that the court should be able to determine issues such as immigration, social security and reasonably quickly without hearing lengthy employment, on which the Great Britain arguments from either side. commission would have a role but the Scottish Mrs Mulligan: Further to your point about the commission could not. children’s hearings system, I appreciate that some Mike Pringle: Do all tribunals throughout hearings might be seen as criminal proceedings Scotland deal only with non-devolved issues? but others are more like civil proceedings. Is any consideration being given to how the Brian Peddie: That is our understanding—all commissioner could take part in hearings that those that we have been able to identify relate might be considered to be civil proceedings? entirely to reserved matters. Brian Peddie: The point is that children’s Marlyn Glen (North East Scotland) (Lab): My hearings need to be considered as a class of question is about the power to co-operate. Given proceedings rather than as a series of individual the split between devolved and reserved remits cases. I am not an expert on children’s hearings, that has already been discussed, it might be but I believe that one could not necessarily say in argued that a power, rather than a duty of co- advance whether a hearing would conclude that it operation, is insufficient. How do you anticipate was appropriate to make supervision a mandatory that that will work in practice? requirement. Therefore, the decision on whether it Brian Peddie: The commissioner is largely was permissible for the commissioner to intervene there to help authorities to comply with their could not be made by pre-judging the conclusion human rights obligations. We hope and expect that the hearing might reach. It seems better to that public authorities will co-operate with the consider children’s hearings as a whole, given the commissioner. However, to place a statutory duty issues that they can consider and the decisions upon other commissioners to co-operate would not that they can take. That is the basis on which we be necessary, because that is the kind of issue decided that intervention would not be appropriate. that ought to be addressed by discussion between Mrs Mulligan: Why does the bill make no the bodies concerned. The prospect of legal provision for the commissioner to intervene in actions between authorities would not be helpful. appellate proceedings, criminal proceedings or We have a provision in the bill to avoid references to the Lord Advocate? unnecessarily duplicating activities undertaken by others, so there should anyway be discussion Brian Peddie: On whether the commissioner about how bodies ought to co-operate so as to get should be able to intervene in criminal best value for their activities. proceedings, it is true that there were differing views. However, as criminal proceedings are Marlyn Glen: The structure of the set-up substantially different in nature from civil concerns me because of the amount of co- proceedings, it was considered inappropriate to operation that will be needed. Given that the allow intervention by a third party in criminal structure of a Scottish human rights commission cases. It is fair to say that there is much less was an area of disagreement among respondents precedent for any third-party intervention in the to the Executive’s second consultation, could you Scottish courts than in the English courts, but such explain further the rationale for the option decided intervention as has taken place has been in civil upon? rather than in criminal cases. Brian Peddie: Are there particular concerns that In appellate proceedings, the commissioner will you want to raise in connection with that or do you have a right to intervene. The bill provides want me to go through the general structure? explicitly that such a right will apply in Marlyn Glen: Could you go through the general “courts of first instance and appeal”. structure first? For instance, I was struck by the change from commission to commissioner and I Therefore, that matter is dealt with in the bill. would like to know what was behind that. Mike Pringle: I understand why you are not Brian Peddie: It is true that both the public getting involved in children’s hearings, but what consultations referred to a commission as will be the commissioner’s role in regard to opposed to a commissioner. The reasons for the tribunals? More cases come in front of the myriad change are, first of all, that it is in line with the tribunals that we have in Scotland than before any precedents that have been set for the other other court. My understanding is that tribunals are commissioners established since devolution, be it almost exclusively civil. the information commissioner, the standards 34 †144 2435 7 DECEMBER 2005 2436 commissioner or the public appointments commissioner and up to two deputy commissioner. There is now a well-established commissioners. model of structure and accountability for You asked who would decide how many deputy commissioners and it seemed sensible in this commissioners there should be. We are getting case, not least in the interests of clarity, to follow into issues that will be the responsibility primarily that established model. We did not identify a clear of the corporate body, rather than of the policy reason for establishing something different. Executive. We expect that the process would start Secondly, if we were to create a commission as a with the appointment of the commissioner and that free-standing body it would probably be necessary there would then be discussions about whether to have additional provisions in the legislation on the commissioner would seek the appointment of the constitution and operation of that body. That one or two deputies, or perhaps of one deputy might introduce unwanted complications in relation now and another at a later date, if that was felt to to how the body would operate, which would not be helpful. The final decision would be with the add any value to the exercise of its functions. Parliament, as the appointments would be by Her There are also accountability issues. If we Majesty on the nomination of the Parliament. created a separate body, the accountability of, let Marlyn Glen: It is quite confusing. I would like to us say the commissioners, would in the first think that the decision about the structure will be instance be not to the Parliament but to that body. driven by policy, rather than by budget constraints In turn, the body would be accountable to the or status. Parliament. Given the role that is envisaged for the commissioner, it seemed on reflection more Do you think that it will be essential to have helpful to have a direct line of accountability lawyers and/or human rights specialists in the between the holder of the office and the commission? The Law Society’s submission Parliament. suggested that there might be a need for ad hoc specialist commissioners. Presumably such Marlyn Glen: What about the numbers at which commissioners would be appointed on a you have arrived? One presumes that a temporary basis, depending on the issues that commission would have more full-time workers. were being considered at the time. You are suggesting that there should be one commissioner with deputy commissioners. Who Brian Peddie: I will deal briefly with the point will decide how many deputy commissioners will about resources. I did not mean to suggest that be appointed, for example? the limitation in the number of commissioners was driven primarily by a desire to keep costs down Brian Peddie: The question whether to have a per se. However, we did not want there to be an commission, as opposed to a commissioner, undue tipping of the balance between resources would not necessarily have impacted directly on for engaging in activity and resources for paying the number of commissioners and deputy commissioners. We did not want to require there commissioners. If we had a commission, it would to be a structure that might be top heavy and not necessarily follow that there would be a larger might take away resources that would better be number of commissioners. A range of views were used for work in the field. expressed about how many commissioners it would be helpful to have. The Northern Ireland It is not for the Executive to say whether the Human Rights Commission has about 14 commissioner’s office ought to have in-house legal commissioners, but most of them operate on a experts, instead of buying in legal expertise. There part-time basis. A very large part of the Northern will be potential for it to do either or both. I suspect Ireland Human Rights Commission’s work is case that there will probably be a mixture of both, work driven. That element, which drives up the particularly in cases in which one would not expect number of commissioners, is not envisaged for the the commissioner’s office to cover the full range of Scottish commissioner. legal issues to the depth required. It might be appropriate for the commissioner to procure Clearly, commissioners must be paid and outside expertise from time to time, which would supported. Given the role that is envisaged for the be possible. Scottish commissioner for human rights, there did not seem to be a strong case for having a larger The Convener: My question is on number of commissioners. We need to strike the accountability, but it relates to Marlyn Glen’s right balance between fulfilling the role, use of question about structure. How will the resources and the internal operations of the commissioner arrive at policy decisions? Suppose, commission. If there is a large number of hypothetically, that a discussion arose about commissioners, there can be significant issues in whether smoking is a human right. The respect of how they interact and co-operate with commissioner, who will not be accountable, might one another. For that reason, it seemed more arrive at the view that smoking is a human right. sensible to have quite a small number of staff—a What would be the process for arriving at the

35 †145 2437 7 DECEMBER 2005 2438

decision? Do you expect a joint decision by the 12:15 commissioner and the deputies, or will there be a The Convener: I understand that, but I am process of consulting with people and then arriving thinking about the power to intervene in civil legal at a decision? proceedings. In theory, if human rights issues Brian Peddie: It is difficult for the Executive to arose in a tobacco case, the commissioner could go into detail about how the commissioner and his intervene if they had something to say, which or her office should go about their business after might be controversial. I imagine that if we create establishment, because many of those issues are a commissioner for human rights and they declare for consideration by the commissioner in that something is a human rights issue, that must discussion with the Scottish Parliamentary have some weight. It is all very well if you agree Corporate Body. It will primarily be for the that all torture is against human rights, but there commissioner to take such policy decisions, after might be one or two areas on which we do not consulting as appropriate, as, for instance, the agree. It would then be a question of public debate Executive is expected to do. The commissioner between elected members and public authorities will be able to make recommendations and that might take a different view. Is that how the comments on policies, practices and the law, but commissioner will work? they will not have a legal power to enforce the I can understand why you want to create a level recommendations directly. However, I expect that, of independence that would give the public the if the commissioner arrived at such a judgment, confidence to go to that person and raise their they would need to be able to justify it when issues. However, it is also frightening that that questioned rather than just come up with ideas out person will be accountable to no one. I must point of the blue. out that although you have drawn an analogy with The commissioner will be required to submit to the Scottish Executive, elected members are at the Parliament annual reports and other reports least accountable once every four years. We are that they produce from time to time, which the seeking to create a commissioner who does not Parliament could discuss. If it was felt that the have that level of accountability. How do you commissioner had somehow strayed too widely or envisage the more difficult and controversial engaged in inappropriate activity, issues might issues being resolved? arise about accountability, but they would be Ed Thomson: I could offer something on that. between the commissioner and the corporate The commissioner making statements and body. I expect that the corporate body and the exercising informal functions is one thing, but with Parliament would have opportunities to comment if respect to exercising their formal powers to they felt that the commissioner might be engaging conduct inquiries or gathering information for in inappropriate activity or making judgments that those purposes, it would be possible under the were not properly founded. terms of the bill for the exercise of those powers to The Convener: So the commissioner will be be challenged if they were felt to be outwith the independent in the main, except in relation to the commissioner’s remit. That is the first level of money that they spend. How will the accountability. The commissioner will not have a commissioner’s decisions be questioned? Is the free hand to decide what is or is not a human issue just the credibility of the decisions? rights issue because the established remit of their job is human rights in relation to those Brian Peddie: The issue is probably largely one international instruments that the United Kingdom of credibility. We should remember that the has ratified. commissioner will make recommendations. We expect credibility to flow partly from the status of On general accountability, you talked about the the commissioner and his or her perceived need for the re-election of elected representatives. expertise or abilities in human rights, and partly There is provision within the bill for Parliament to from the recommendations themselves. If the remove commissioners from office, so there is a commissioner made recommendations that people nuclear option, if you like. If the commissioner had problems with or thought were ill founded, I completely loses the confidence of Parliament, the would expect them to respond and to say where option is there to remove them. and why they thought the commissioner was The Convener: So you would expect any wrong. Any action that is to be taken on the decision or view of the commissioner to have commissioner’s recommendations will be, foundation in a treaty or convention. depending on the context, for the public authorities concerned or perhaps for the Parliament in Ed Thomson: The commissioner’s remit clearly creating legislation. Any recommendations that the defines human rights as those contained in commissioner makes will not be legally binding international instruments that the UK has ratified. and will be discussed before they go any further. That is what the commissioner would look to to provide the parameters of their role.

36 †146 2439 7 DECEMBER 2005 2440

The Convener: I will use smoking as an the request of the commissioner or deputy example, although it is not a very good one commissioner, or if the Parliament so resolves. because we have already legislated on it. Some Mrs Mulligan: Sorry, can you say again where people believe that smoking is a human right, but that is? there is no treaty that could be relied on to back that up; so, if the commissioner made a Brian Peddie: Yes. The Parliament can resolve declaration on that, they would be acting outwith that a commissioner or a deputy commissioner be their remit. removed. Ed Thomson: I am afraid that I do not know Mrs Mulligan: But where is that in the bill, enough about smoking to be able to say whether it please? falls within the remit of any of the international instruments that the UK has ratified. Brian Peddie: That is in paragraph 4 of schedule 1. In general, any topic on which the commissioner wishes to exercise their powers would have to fall Mrs Mulligan: Thank you. I shall read that within the definitions set out in any of the schedule later. instruments that have been ratified by the UK. If the Parliament agrees to the establishment of There are many of those instruments—in excess a commissioner, there will be a need to resource of 40 or 50, depending on how they are defined— the position adequately, as you have said. There and they cover a broad range of subjects. is an issue about the charges that the John St Clair (Scottish Executive Legal and commissioner can make—I will come back to that. Parliamentary Services): I should add that It has been intimated that the Executive will set advice coming out of a public body such as the aside around £1 million to finance the position. commissioner is a public act and someone who is Can you tell us how that sum was arrived at? affected by it could challenge it through a judicial Brian Peddie: The matter is dealt with in the review. It is tricky to judge how successful that financial memorandum. As members may be would be, but there would be such a right of aware, it was also discussed by the Finance challenge. Committee last week. The starting point in relation Brian Peddie: To finish on this point, the to the figure of £1 million was our looking at similar convener is right to say that this is an issue of bodies elsewhere, including the Human Rights credibility. If the commissioner was to make a Commission in the Republic of Ireland and the one habit of making recommendations or other in Northern Ireland. That gave us a feel for the pronouncements that were widely perceived to be activity that the commissioner could reasonably be ill-founded or just plain wrong, that could prejudice expected to engage in and what would be a the commissioner’s ability to perform his or her reasonable provision, in comparison to provision functions properly. for other bodies, to enable that activity to be undertaken. That is how the figure of £1 million There is one consideration relating to the was arrived at. The Executive has said that it will Executive’s view on the term of appointment. A provide an additional £1 million of funding from number of respondents felt that the commissioner 2006-07 to meet those costs. ought to have a longer term of office—seven years rather than five. There are arguments both ways, Mrs Mulligan: Okay. Will those costs include but the model that is proposed in the bill—whereby provision for training, or will that be one of the the commissioner would be appointed for five things that might be charged for? years, but with the possibility of reappointment— Brian Peddie: We expect the commissioner to could be seen as providing an additional engage in training and similar activities. The safeguard in that respect. If a commissioner made financial memorandum gives an estimated a habit of behaving in an unfounded way, one breakdown of costs, albeit under relatively broad would expect that that would not do much for his headings, relating to how the budget of £1 million or her chances of reappointment. might be spent. More accurately, perhaps, it details what we would expect a commissioner to Mrs Mulligan: Before I ask my questions on spend, at least in the first two years of his or her finance, I want to follow up the points that have operation. just been made about the commissioner. In evidence from the children’s commissioner, we The Executive could not give a more detailed were told that there is nothing in the bill about breakdown of the costs in advance, as we cannot removal from office if the commissioner goes say that we expect the commissioner to engage in outwith their bounds. Can you point out where that a specific activity to a certain level under a specific is mentioned? heading. Therefore, we could not say that we expect the commissioner to undertake a certain Brian Peddie: A commissioner or a deputy amount of training activity and to spend a certain commissioner can be removed by Her Majesty at 37 †147 2441 7 DECEMBER 2005 2442

figure in relation to that. It will be for the suitable opportunities arise. In our financial commissioner himself or herself to decide the planning, we have not counted on the most appropriate allocation of resources. commissioner generating any income; we assume Especially in the initial stages of operation, it is that the commissioner will be able to fulfil their likely that the commissioner will focus on more statutory functions with the budget of £1 million. general promotional and awareness-raising However, to give an example of the type of activities, not least to make authorities and the services for which the commissioner might charge, public more aware of the commissioner’s soon after the Scottish information commissioner existence and what the commissioner is about. was appointed, he undertook several seminars Mrs Mulligan: You are absolutely right that the and workshops throughout Scotland to promote commissioner must take a view on how the the Freedom of Information (Scotland) Act 2002 funding is spent. I pursued the training aspect and his role. I believe that attendance at the because, in response to an earlier question from events was charged for on a sliding scale, with Margaret Mitchell, you referred to Human Rights private individuals being charged the maximum, Scotland, which is funded by the Executive to down to public authorities and voluntary bodies at provide training. When the commissioner is the bottom of the scale. That is the type of service established, will the funding for that organisation for which the commissioner might charge. stop? Marlyn Glen: I want to play devil’s advocate for Ed Thomson: The Human Rights Scotland a moment. You might have noticed the conditional project that we fund is a limited, three-year project tense creeping into some of our questions—they in its first financial year, so it is due to come to an have not been about what will happen when the end in two years’ time anyway. commissioner is established, but whether the post should be established at all. As I understand it, Mrs Mulligan: That is at much the same time as under the Equality Bill that is going through the the commissioner is to be set up. United Kingdom Parliament, the Great Britain Ed Thomson: That is largely by coincidence. commission will be able to act on devolved human Mrs Mulligan: A happy coincidence. rights issues only with the permission of the Scottish commissioner. That presumes the Ed Thomson: The funding was not timed to end establishment of a Scottish commissioner, so we when the commissioner is established. The two seem to be in a catch-22 situation. Where would it are considered to be separate programmes. leave human rights in Scotland if the Scottish Mrs Mulligan: That was probably a side issue. Parliament decided not to go ahead with the bill? You mentioned that, in arriving at the budget For example, would it be possible to amend the figure, you considered experiences elsewhere, UK bill? including Northern Ireland. My understanding is that the Northern Ireland Human Rights 12:30 Commission started out with one figure, but then quickly sought to increase it. Do you have any Brian Peddie: We worked closely with our comments on that? colleagues in the UK Government on the drafting of the provisions to which you refer in the Equality Ed Thomson: Yes. The initial budget allocation Bill. We were careful not to make any assumptions for the commission from the Northern Ireland about the creation of a Scottish commissioner, Office was in the region of £0.75 million, but, after although we of course knew that a commissioner a year or two of operation, that was discovered to was proposed. The wording in the Equality Bill be inadequate. The budget has since gone up to does not refer explicitly to a Scottish commissioner about £1.3 million. In examining other bodies such for human rights, because no such commissioner as the Northern Ireland commission, we have exists. If I may paraphrase, it refers to a person or taken into account the fact that they have different body empowered by the Scottish Parliament to powers and remits, depending on their contexts. It have a human rights remit. It is for the Parliament is significant that, because of the context in which to decide whether there should be such a the Northern Ireland commission was established, specifically Scottish person or body. As I it has a casework role, which is a particularly mentioned, the GB commission cannot take action resource-intensive activity. We estimate a lower in relation to devolved human rights issues without annual cost for the Scottish commissioner, the consent of that person or body. If the bill were because they will not have such a role. not enacted and there were no Scottish commissioner, there would be no body with a Mrs Mulligan: Can you give a bit more detail on remit in respect of devolved human rights matters how the commissioner’s power to charge for in Scotland that was equivalent to the remit that certain services would work? the GB commission would have in relation to Ed Thomson: That capacity is included in the reserved matters. bill for the commissioner to make use of should

38 †148 2443 7 DECEMBER 2005 2444

Marlyn Glen: Is it possible to change the UK not exercised legislative competence”. Would that legislation, as it is still before Parliament? address the issue? Brian Peddie: The UK legislation is almost at Brian Peddie: I need to be somewhat careful, the end of its progress. The opportunities for as we may be entering lawyers’ territory. The changing it have probably passed. Presumably, it basic principle that a provision in the Westminster would be possible for it to be amended bill framed in such terms would confer a function subsequently by primary legislation at relating to a devolved area on the GB commission Westminster. I am not sure what you are getting would remain, with all the implications that that at. You may have in mind amending the Equality has, including a Sewel motion or its equivalent, to Bill in order to give the GB commission a remit in provide for the situation unless and until a Scottish relation to devolved human rights matters as well commissioner is created. I do not think that the as reserved ones. Given that those issues are suggested amendment would address that specific within the competence of the Scottish Parliament, point. It would, I suppose, address the situation in it would appear that such a move would be at which, if the creation of a Scottish commissioner odds with the devolution settlement. The Equality were deferred or did not happen at all, there would Bill was framed as it was precisely because, under at least be a commission—albeit a GB body—that the settlement, it is for the Scottish Parliament to was able to exercise that function. However, we confer that kind of remit on a person or body. are still left with the fundamental principle that it would not then be a Scottish body that was Marlyn Glen: It is interesting that in our accountable to the Scottish Parliament. Such a discussions we have returned to the fundamental provision would confer on the commission a principle. However, as you have said, the devolved function, which would be within the fundamental principle has already been Scottish Parliament’s competence and to which established. Thank you for your answer. the Scottish Parliament would have to agree. Brian Peddie: If you mean the fundamental Margaret Mitchell: The Parliament passed a principle of having a Scottish commissioner, I think Sewel motion recently and I had understood that that it has not been established. If it were there was provision in the UK bill for what would proposed instead to give the GB commission a effectively be a Scottish commissioner to be remit in relation to devolved matters, clearly that appointed by the UK authorities. That person could be done and the Scottish Parliament would would have regard to reserved matters but would, be able to agree to it. I suspect that that would in certain circumstances, be able to consider require a Sewel motion or whatever the devolved matters if they were seen to overlap. Will mechanism is now called. The Parliament would you confirm whether that is the case? have to agree to confer the function on a GB body. Given that the GB commission will be accountable Brian Peddie: The issue about a Scottish to UK ministers, some eyebrows might be raised commissioner in that context relates to prime at such a suggestion. That is why it is regarded as responsibility for Scottish matters in relation to the appropriate for there to be a specifically Scottish GB commission. In relation to the human rights body. side of the remit, the GB commission will be unable, under the bill as framed, to take action in I make it clear that, in the preparation of the the devolved sphere without the consent of the Equality Bill, it has not been assumed that there Scottish commissioner or equivalent. will definitely be a Scottish commissioner. If that did not happen and, as a consequence, it was Margaret Mitchell: It has specifically been said desired that the GB commission should be given that, in instances of overlap, the GB commission the remit that the Scottish commissioner would will be competent to consider devolved issues. otherwise have had, technically that would be That debate was only a few weeks ago and is on possible. However, it would require legislation at the record. Westminster. Brian Peddie: I am not familiar with that debate. The Convener: I should have introduced our The clause in the UK bill that relates to devolved adviser, Professor Jim Murdoch, at the beginning human rights functions has not been changed, but of the meeting. You probably know who he is, in we will be happy to get back to you on the matter. any case. Jim has a suggestion regarding the Margaret Mitchell: That would be appreciated, point that we are discussing. because it is germane to the issue. Also, you refer Professor Jim Murdoch (Adviser): I wonder to a Scottish committee being set up in Glasgow. I whether the point could be addressed at clause would like to know more about that. However, I 7(1) of the Equality Bill by inserting the words “not wish to move on to what is disturbing me most. exercised”. The clause would then read, “The The bill at Westminster is at the committee stage. Commission shall not take human rights action in How long will that take? What is the role of the relation to a matter if the Scottish Parliament has committee? Is it scrutinising the bill? Is it still

39 †149 2445 7 DECEMBER 2005 2446

making changes? When do we expect the bill to The Convener: I welcome Simon Braunholtz, complete its progress through Parliament? Why the director of MORI Scotland, who will make a are we considering the Scottish bill before we brief presentation to the committee on MORI’s know the final outcome of the UK legislation? findings on the Scottish Commissioner for Human Rights Bill. Brian Peddie: My understanding is that the UK Equality Bill is near the end of its consideration. It Simon Braunholtz (MORI Scotland): Thank commenced in the House of Lords and had its you for asking me along this morning. The study Commons committee consideration last week or that we conducted for the committee was brief, so the week before last. We are just about at the end my evidence might not be as extensive as that of the road. There is the Commons report stage from the previous panel. still to come, but the scrutiny is virtually complete. We undertook a survey of 1,018 adults The Equality Bill has been the subject of separate throughout Scotland and asked them about four discussion in the Scottish Parliament in connection aspects of human rights. First, we asked an open, with the Sewel motion. free-ranging question about their overall On your point about the timing of this bill and the impressions of human rights in Scotland. Equality Bill, no assumptions have been made that Secondly, we asked whether they felt that current there will or will not be a Scottish commissioner; it protection of human rights was adequate. Thirdly, is simply that provision was made in the Equality we asked whether they thought that there would Bill for the eventuality that there would be one. be any benefit from establishing a body that had The GB commission proposals are not predicated certain responsibilities. Fourthly, we asked who on the assumption that there will be a Scottish they thought would benefit from the establishment commissioner and, similarly, the issue of whether of such a body. there should be a Scottish commissioner is not I have prepared a brief, one-page summary for dependent on there being a GB commissioner or a the committee, which I hope is helpful in drawing GB commission. In fact, the Scottish proposals out the key findings of the survey. I am happy to predate considerably the proposals for a GB go through those key points now or to take commission. questions. I am not sure which you would prefer. Margaret Mitchell: That is a different question. I The Convener: I understood that you were am asking whether there is provision in the going to make a presentation, so I think that you Equality Bill for creating a UK Scottish should just continue. commissioner who will consider reserved matters and, in some instances, the overlap into devolved Simon Braunholtz: That is fine. When people issues. are asked what the term “human rights” means to them, the most common first response is to do The Convener: We recognise that you are not with equalities—17 per cent of respondents responsible for the UK bill; you are responsible for mentioned something to do with equalities. telling us about the Scottish bill. It would be helpful if you could clarify which areas of competence we Interesting differences in views were expressed transferred to Westminster in relation to throughout the study, particularly by age group consideration of the bill. and socioeconomic class. In survey research, there are two socioeconomic class groupings— Brian Peddie: I can certainly do that. working class and middle class. Working class The Convener: You may answer the question— refers to respondents who live in households I just wanted to make it clear that you are not where the chief income earner is in unskilled work dealing with the UK bill. You can help us with it if or where people rely on state benefits and you can, but you are here because you have pensions. Middle class refers to respondents who responsibility for the Scottish bill. live in households where the chief income earner is in professional, clerical or non-manual Brian Peddie: It would be helpful to cover all employment. those issues in written responses. We will get back to the committee as quickly as we can with I recognise that the groupings are archaic in those. some senses, but there is quite a lot of evidence that attitudes, experiences and educational The Convener: That brings us to the end of achievement are still associated with those lines of questioning. I thank Brian Peddie socioeconomic class and the employment status and his team for their presentation and for of the chief income earner in the household. There answering all our questions. I am sure that we will are, indeed, interesting variations in the views that have further questions as we take evidence and I are expressed in the survey by people from am sure that you will not mind answering any different socioeconomic classes. For example, other questions of clarification if we have any. responses to the question of human rights differ Brian Peddie: Indeed not. according to the respondent’s socioeconomic 40 †150 2447 7 DECEMBER 2005 2448 class. Middle-class people are more likely to form Six out of 10 respondents thought that there and express a view about what human rights would be benefit in setting up such a body. In the mean to them. light of the fact that only a quarter of respondents felt that there was inadequate protection of human 12:45 rights in Scotland, it is perhaps surprising that two thirds of respondents thought that there would be The second most frequently mentioned item is benefit in establishing such a body. My freedoms, rather than equal opportunities— interpretation is that that view is based on the freedoms of movement, religion, sexual body’s role in informing people about human rights expression and speech—which are also more in Scotland, not simply on its role in protecting likely to be mentioned by middle-class human rights. Younger people, working-class respondents. Then comes the issue of the people and women were more likely to agree that protection of groups on the grounds of their such a body would be beneficial. ethnicity, sexuality, age, gender or disability. Again, the issue was slightly more commonly There were some interesting variations in the mentioned by middle-class people. Finally, groups that people felt would be most likely to mention was made of the rights of specific benefit. The most commonly mentioned groups groups—asylum seekers, refugees and were immigrants and ethnic minorities—each of immigrants. Those, too, were more commonly which was mentioned by about a quarter of mentioned by middle-class respondents. respondents—followed by older people, children and young people, and those with disabilities. In Other comments were made that did not relate broad terms, there were two patterns of response to what human rights meant to individuals—what to the question. Middle-class respondents—who human rights were—but which seemed to reveal were more lukewarm about the need to establish people’s attitudes. A small number of people said such a body—were more likely to feel that that human rights were a politically correct issue, immigrants and refugees were potential that in some way human rights had gone too far, beneficiaries. Working-class and younger or that human rights were of little value or respondents—who, on balance, were more meaningless. It is also important to bear in mind supportive of the establishment of such a body— the fact that about three in 10 respondents said were more likely to mention homeless people, that they did not have any impression of what children and young people. human rights meant in the context of Scotland. The issue is perhaps not at the front of I am happy to answer any questions but, as the everybody’s mind in the pubs and bars across survey was very short, I may not be able to give Scotland—people’s views must be interpreted in chapter and verse. the light of that fact. The Convener: Thank you. It is useful for us to When we asked people whether they felt that see public attitudes towards human rights. I am rights were adequately protected in Scotland, one sure that the survey will be informative for our in six—17 per cent—said that they did not know work on the bill at stage 1. Do members have any and about half said that they were. About a quarter questions for Simon Braunholtz? of respondents said that there was inadequate protection, which was about twice the number of Mr McFee: I have a brief question, although I people who felt that there was excessive am not sure whether you will answer it, as it is protection. That gives us the balance of opinion on about your impression of the results. In your that subject. Slightly more women and people from opinion, did a significant number of respondents working-class households felt that rights were not equate human rights with equality and see those protected, whereas people from middle-class things as one issue? Was there a crossover on households were more likely to feel that rights that? That might not be possible to quantify. were adequately protected. Simon Braunholtz: That is one of the We asked whether people felt that there would interesting things that came out of that first, free- be benefit to Scotland in the creation of a ranging question, for which we did not pigeon-hole Government-funded body—we phrased the people into certain responses but allowed them to question carefully—to inform the public about answer in whatever way they liked. When we human rights and to investigate Scottish public asked people what human rights meant to them, bodies on devolved matters. The question the most common association given was with incorporated two elements—informing and equalities. Some 17 per cent—one respondent in investigating—as well as the phrase “devolved six—said that they associated human rights with matters”. That phrase is not always familiar to some form of equalities. people, who do not necessarily know what issues Mr McFee: Can you clarify whether that was 17 are devolved. Nevertheless, the phrase was used per cent of those who stated a view? I think that in the question and will have affected some the column adds up to 115 per cent. people’s responses. 41 †151 2449 7 DECEMBER 2005 2450

Simon Braunholtz: The total will add up to more than 100 per cent because people could mention more than one thing in their response. For example, they could mention something else in addition to equal rights. Some respondents had, as it were, a mosaic image of human rights rather than a narrow definition. The Convener: I particularly liked the response “European mumbo-jumbo”. Who thought up that response? Mr McFee: Only 1 per cent of respondents. The Convener: I see that “More work for lawyers” was given by only 1 per cent of respondents. That seems a very low score for that response. Mr McFee: It was probably given by a lawyer. The Convener: Only 2 per cent said that the creation of such a body would benefit “Those in power”, which people might think means MSPs. If members have no other questions, I will simply thank Simon Braunholtz for his presentation. We are grateful to him and to MORI for the survey, which will be helpful to our work.

42 †152 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

40th Meeting, 2005 (Session 2), 7 December 2005, Supplementary Written Evidence

SUPPLEMENTARY SUBMISSION FROM MORI SCOTLAND

Further analysis of research conducted by MORI Scotland

Findings from a face-to-face survey of 1,018 adults aged 16+ across Scotland, interviewed in their homes. Sample weighted to be representative of the population profile, and interviews conducted on 27 October – 2 November 2005.

There is a clear relationship between whether people support the idea of a government funded body to inform and investigate human rights in Scotland, and the extent to which people feel there are currently adequate, inadequate or excessive human rights in Scotland. However, this does not mean that views are entirely predictable. Around four in ten (38%) of those who feel that there is excessive protection offered by human rights in Scotland agree that a publicly funded body would benefit Scotland. Furthermore, around one in six (17%) of those who feel that there is insufficient protection disagree that such a body would be of benefit (see table 1)

Table 1: Do you agree or disagree that Scotland would benefit from a government funded body to inform the public about human rights and which could investigate Scottish public bodies on devolved matters?

Perception of level of protection under human rights in Scotland today Attitude to benefit to Insufficient protection Adequate protection at Excessive Scotland of proposed at present present protection at new body present Agree would be of benefit 76% 65% 38% Disagree would be of 17% 30% 56% benefit Don’t know 7% 5% 6%

Meanwhile, the groups most commonly thought would benefit from the establishment of a body to provide information about human rights and to investigate public bodies are immigrants and refugees (25%) and ethnic minorities (23%). Examining responses to this question according to people’s views on whether they feel Scotland would benefit from such a body is illuminating, suggesting that those who are more favourable to the concept of extending human rights protection think of different groups as being the beneficiaries that do those who are more averse.

Table 2: If such a body were to be established, which individuals or groups do you think would be most likely to benefit?

Attitude to establishing a body Groups more likely to be Agree body would be of Disagree body would be of named by supporters benefit to Scotland benefit to Scotland Older people 27% 7% Children/young people 24% 6% People with disabilities 22% 8% Women/men 21% 6% Homeless people 17% 7% Victims of crime 15% 6% Base (652) (266)

On the other hand, there are some groups that are as likely to be named by people regardless of whether they are supportive of the idea of a body to review human rights:

Table 3: If such a body were to be established, which individuals or groups do you think would be most likely to benefit?

43 †153 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Attitude to establishing a body Groups as likely to be named Agree body would be of Disagree body would be of by supporters or opponents benefit to Scotland benefit to Scotland Immigrants/refugees 25% 29% Ethnic minorities 25% 25% Convicted criminals 8% 12% Base (652) (266)

This suggests that the impression formed by the term human rights, and their protection in Scotland, is rather different among those who would support the new body – and is more wide- ranging among this group – than is the case among opponents of the body, whose perception of the beneficiaries is rather narrower.

SUPPLEMENTARY SUBMISSION FROM THE SCOTTISH EXECUTIVE

I am writing to reply to the questions about the Equality Bill, presently being considered at Westminster, that were raised during our evidence to the Committee at its meeting on 7 December. I will write separately in response to the questions raised by Committee members about the Executive’s consideration of national human rights institutions in other jurisdictions.

The Equality Bill was introduced in the House of Lords on 18 May 2005. Having completed its initial passage through the House of Lords, the Bill completed the Committee Stage House of Commons on 8 December. No date has yet been given for the Commons Report Stage, but the indications are that this may take place in mid January 2006. There is not therefore expected to be an opportunity to consider any further amendments to the Bill, unless some exceptional circumstance arises. Assuming that the Bill is passed it is hoped that it will receive Royal Assent by the end of February. The present estimate for when the Commission for Equality and Human Rights (CEHR) to be created by the Bill will assume its human rights functions, and most of its equality functions, is October 2007.

The Bill is predominantly concerned with matters outwith the legislative competence of the Scottish Parliament. Its main provisions are to:

x establish the CEHR and define its purpose and functions;

x make unlawful discrimination on the grounds of religion or belief in the provision of goods,facilities and services, education, the use and disposal of premises, and the exercise of public functions; and

x create a duty on public authorities to promote equality of opportunity between women and men ('the gender duty'), and prohibit sex discrimination in the exercise of public functions.

Powers of the CEHR in relation to devolved issues

Clause 7 of the Equality Bill prohibits the CEHR from taking human rights action in relation to a matter if the Scottish Parliament has legislative competence to enable a person to take action of that kind in relation to that matter. However, that prohibition is not absolute: the CEHR would be able to take such action if, and only if, it obtained the consent of a person established by an Act of the Scottish Parliament whose principal duties relate to human rights and are similar to any of the CEHR’s duties in relation to human rights.

As discussed during the Committee meeting, clause 7 refers to “a person established by Act of the Scottish Parliament” whose principal duties relate to human rights and are similar to any of the CEHR’s duties in relation to human rights, rather than referring to the Scottish Commissioner for Human Rights by name, to reflect the fact that the Scottish Parliament has not yet passed the SCHR Bill. The SCHR as proposed to be created by the Bill presently before the Committee would fall within the definition in clause 7, and the clause was drafted on this basis precisely to take

44 †154 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D account of the Executive’s publicly stated commitment to establish the SCHR. However, as I explained in our evidence on 7 December, this does not mean that the Equality Bill assumes that the SCHR or a person with similar functions will in fact be established. Should the SCHR or a similar post not in fact be created, the effect of that would be that the CEHR would be absolutely prohibited from taking human rights action in relation to devolved matters.

The Sewel Motion

On 26 October 2005 the Scottish Parliament passed a Sewel motion with regard to the Equality Bill, following consideration of the Motion by the Equal Opportunities Committee. The purpose of the provisions for which consent was sought in terms of the Sewel Motion was;

x to ensure that the operations of the Commission for Equality and Human Rights (CEHR) reflect and respect the devolution settlement (Part 1 of the Bill); and

x to ensure appropriate application in Scotland of the gender duty (Part 4 of the Bill).

Only the first of these points is relevant in relation to the proposed Scottish Commissioner for Human Rights. The purpose of the Sewel Motion on this point was to secure the Scottish Parliament’s agreement to clause 7, since conferring human rights functions in relation to devolved matters on a person or body, as clause 7 does for the CEHR (albeit conditionally), is itself within devolved competence. I enclose a copy of the Sewel Motion, and of the Memorandum that accompanied it which explains this and the other purposes of the Motion in greater detail.

Scotland Committee of the CEHR

The Equality Bill will require the appointment of a member to the CEHR Board who will have special knowledge of Scotland. This appointment will require the consent of the Scottish Ministers.

The Bill will also establish a statutory Scotland Committee to oversee the work of the CEHR in Scotland. That Committee will have delegated powers to set priorities for and oversee the CEHR’s work in Scotland. It will also provide a Scottish perspective on the development of the CEHR’s overall priorities and their delivery in Scotland.

The UK Government announced in November that the CEHR will be based in two sites in England, with a majority of staff based in Manchester and a significant presence in London. The CEHR will also have offices in Glasgow and Cardiff and a strong regional presence throughout Great Britain. I hope that this is information is helpful, and addresses the points raised during our evidence. However, please let me know if the Committee would wish further information.

Brian Peddie Head of Human Rights and Law Reform 16 December 2005

45 †155 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

41st Meeting, 2005 (Session 2), 14 December 2005, Written Evidence

SUBMISSION FROM DISABILITY RIGHTS COMMISSION

The Disability Rights Commission (DRC) is a non-departmental public body, created by statute in 1999 and established in 2000. Our goal is a society where all disabled people can participate fully as equal citizens. We are committed to the effective delivery of disabled people’s rights across Scotland and Great Britain.

The DRC supports the creation of a Scottish Human Rights Commission (SHRC) and agrees with the Scottish Executive that, given the extent to which the ECHR is written into the devolution settlement through the Scotland Act 1998, there is a case to be made for a separate Scottish Human Rights Commission over and above the forthcoming GB-wide Commission for Equality and Human Rights (CEHR).

We welcome the opportunity to comment on the general principles of the SHRC Bill, and have comments to make in a number of related areas: the SHRC’s powers: their particular powers in relation to inquiries; potential difficulties caused by “gaps” between the role of SHRC and the CEHR, in particular the current absence of judicial review powers in either body in Scotland; and ensuring clarity in the public mind in Scotland as to the respective roles of the SHRC and CEHR.

We note that the bill for the creation of the Commission for Equality and Human Rights has been designed to ensure proper and appropriate recognition of the role of the SHRC and to differentiate between devolved and reserved human rights issues to ensure that the two bodies do not overlap and can work together where appropriate. However it would seem that this synergy between the two bodies may not have been achieved. In particular Clause 7 of the Equality Bill seeks to restrict the powers of the CEHR to take action in relation to human rights in Scotland where “the Scottish Parliament has legislative competence to enable a body to take action”. While this wording has been used understandably because no body yet exists in Scotland who can be referred to directly, it means that the CEHR is restricted in its Scottish activities where there is competence to create a body and bestow powers on it, even if no such body is ever created or is ever given such powers. This means the CEHR’s role in Scotland is restricted, without the assurance of a parallel body that will completely fill this gap. This is a particular concern in light of the issues raised within the rest of this submission.

The DRC is in no way suggesting that Scotland should simply replicate the powers and duties given to the CEHR by the Westminster Parliament. It is entirely for the Scottish Parliament to decide the appropriate and necessary powers and duties of a Scottish body in the context of the needs of Scotland. However, a comparison between the two bodies can be instructive when considering the appropriate make up of the Scottish Human Rights Commissioners powers.

SHRC duties and powers

Duties The SHRC has duties to promote best practice in relation to human rights and to encourage Scottish public authorities to comply with the Human Rights Act. This is warmly welcomed. However, the CEHR also has the power to protect human rights which gives a strong central role to the Commission and also meets the Paris Principles. A similar power to protect rights should be considered for the SHRC.

Enforcement It remains a matter of regret that the SHRC has no direct enforcement powers. While it can undertake inquiries, it cannot support court action taken by victims of human rights breaches. The CEHR will be able to support human rights cases which have an equality element and continue with the case even if the equality element falls away. While this power will extend to cases in Scotland, a power to directly support human rights cases by the SHRC should be considered.

The power to intervene in cases already before the courts is also warmly welcomed, but the requirement that an individual will have to have raised such a case before such intervention is possible, restricts the usefulness of this power.

46 †156 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Judicial review A recent amendment to the CEHR Bill in the House of Lords by the Westminster Government has given the CEHR a limited judicial review power in relation to human rights. The CEHR will have the power, in strategic cases, to review human rights actions by a public authority where there is a possible victim. This power would appear not to apply in Scotland (see below). The SHRC presently has no such power either. It would therefore be helpful if consideration were given to providing the SCHR with similar provisions.

Grant provision The SHRC has no grant making powers while the CEHR does. Again it is doubtful that the CEHR power extends to Scotland. The power has been granted to the CEHR in recognition of the need to build a strong network of local provision in the human rights field. This same need exists in Scotland and a grant making power for the SHRC would contribute substantially to the achievement of the SHRC’s general duty to promote awareness and understanding of human rights.

SHRC Inquiry Powers

Inquiry powers for the Commissioner are to be welcomed. However, the powers provided are substantially restricted and once again are much weaker than the powers available to the CEHR.

While the SHRC has powers to carry out an investigation into public authorities generally, or public authorities of a particular type, it only has powers to investigate the policies and practices of a particular authority if it is the only authority with functions in relation to the subject matter of the inquiry (except where a breach of the torture convention is at issue). This is extremely restrictive and means, for example, that no individual health board, local authority or prison could ever be investigated, unless the investigation is in relation to an issue of torture.

The CEHR has powers to carry out both inquiries relating to any human rights issue, as well as investigations where an unlawful act is suspected. They can inquire into any matter relating to their general duty and into any relevant body. The CEHR can also carry out an investigation in relation to a particular case where a breach of human rights is suspected, while the SHRC cannot. The CEHR can also make a finding that there has been a breach of the Human Rights Act and then, if necessary take judicial review proceedings against the authority, while the SHRC cannot either make findings of a breach or raise proceedings to have the breach remedied.

Such disparity in powers is a matter of concern and we would suggest strongly that this matter must be considered again.

Interaction between the SHRC and CEHR

It is intended that the CEHR can only use its powers in relation to intervention, investigation, judicial review etc, in Scotland with the consent of the SHRC. It is certainly appropriate that some such arrangement is made. However, it is not at all clear if the SHRC would be able to give consent to an action which it itself has no power to take. If the SHRC cannot raise judicial review proceedings, can it consent to another body doing so? Arguably indeed, Clause 14 would appear to specifically exclude the provision of consent, since it expressly confers powers to consult, act jointly, co-operate with, or assist another body, but not to consent to its actions.

The DRC feel that this lack of clarity in the legislation around the interaction between the two bodies needs to be examined. In due course no doubt a memorandum of understanding or similar agreement between the two bodies will be required to ensure seamless working, but the legislative interaction must be given some clarity to facilitate such an approach.

Ensuring Ease of Public Access to both bodies in Scotland

The issues around ensuring seamless working arrangements between the SHRC and the CEHR are part of a larger question about how the two bodies will work in Scotland in a way which will minimise the potential for public confusion or uncertainty about respective roles and functions.

47 †157 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Moves to embed a human rights culture in Scotland could be hampered by confusion or even scepticism prompted by a perception that there are two separate public bodies in Scotland working in broadly overlapping areas.

There would be merit in considering parallels with existing arrangements, e.g. the Scottish and UK Information Commissioners, the Accounts Commission for Scotland and Auditor General working together as Audit Scotland and examining how these models might inform the joint working of the SCHR and CEHR

Disability Rights Commission November 2005

SUBMISSION FROM EQUAL OPPORTUNITIES COMMISSION

Introduction and Summary

The Equal Opportunities Commission (EOC) welcomes the proposal to create the post of Scottish Commissioner for Human Rights. The EOC believes that women and men in Britain should enjoy the protection of the broad range of human rights set out in the European Convention of Human Rights ("the Convention") and in other international human rights instruments to which the UK is a signatory. The promotion and protection of these basic human rights through a national human rights institution contributes significantly to the development of a society where human rights are understood and respected.

The EOC's response to this consultation is determined by two key principles, namely that any Commission should be set up in accordance with the Paris Principles and that there should be a consistent legal framework across equality and human rights issues in terms of the nature and scope of rights and the institutions to support their delivery.

This response is also informed by the current provisions of the Equality Bill setting up the GB Commission for Equality and Human Rights. It is important that the two bodies compliment each other, and that there are no gaps or overlaps in powers, duties and functions. It will be important too for the two institutions to have clearly defined separate identities, in order that the demarcation in remit is clear in the minds of the public.

The EOC fully supports: x The decision to create the post of Scottish Commissioner for Human Rights; x The decision to make the office accountable to Parliament; x The power of the Commissioner, in conducting inquiries, to enter places of detention.

However, the EOC is concerned that: x The remit of the Scottish Commissioner would appear to be particularly narrow; x There would appear to be a gap in cover between the promotion and protection of human rights in Scotland and elsewhere in the United Kingdom, for citizens both in Northern Ireland and England and Wales; x The Commissioner has no enforcement powers, and x The resources which it is proposed to give the Commissioner are insufficient.

1. Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

The EOC believes that a Human Rights Commissioner, with the appropriate responsibility, powers and resources, is necessary to ensure the protection and promotion of human rights in Scotland. The establishment of the post indicates a clear commitment from the Scottish Parliament to place human rights at the centre of the development of society, and endorses Scotland as a confident nation which is concerned to ensure that human rights are fully respected by its public authorities. It demonstrates adherence to the principle of equality of opportunity, one of the four founding principles of the Scottish Parliament.

48 †158 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

It is envisaged by the Paris Principles that human rights can be best enforced and monitored in a regional context. It is important therefore that there exists a distinctly Scottish institution, able to take full account of devolution, distinctive traditions, institutions and culture. A separate Scottish human rights institution is particularly important, given the obligations which the Scotland Act places on the Scottish Parliament and the Executive in relation to compliance with the Convention.

2. What would such a body add to existing mechanisms for protecting human rights in Scotland?

There are a number of public bodies in Scotland which have responsibility for promoting and enforcing certain human rights standards, including the Equality Commissions, as well as the Commissioner for Children and Young People, the Scottish Public Services Ombudsman, the Scottish Criminal Cases Review Commission, Her Majesty's Inspectors of Education, Police, Prisons etc. In addition there are a number of voluntary organisations, such as the Scottish Human Rights Centre, which make a vital contribution to the promotion of human rights. However, each of these bodies or organisations is restricted either by its statutory terms of reference to particular issues, or by its lack of statutory underpinning and lack of resources.

A purpose-designed organisation with responsibility, powers and resources to enable it to fulfil vital tasks will go a long way to fostering a human rights culture in Scotland. A Human Rights Commissioner, with the right powers, functions and resources, would be uniquely placed, with the necessary expertise and vision, to create a coherent over-arching strategy to improve on the current systems in place. An independent human rights Commissioner would be able to draw on her expertise to provide an impact assessment of the human rights implications of bills as they pass through parliament, could ensure that advice to the public was available in a consistent and comprehensive form and was fully accessible; could provide tailored, consistent and expert advice for public authorities; would have the expertise and could devote time to creating a strategic vision which would allow a focused, targeted and sustained awareness raising campaign on human rights issues.

Most importantly, a human rights Commissioner could work with the judiciary to raise understanding of the letter and spirit of human rights enactments.

3. How should the Commissioner be accountable?

It is appropriate that the Commissioner be accountable to the Parliament rather than to Ministers. The independence of the Commissioner is essential to ensure adequate scrutiny, without interference, of the human rights record of public bodies in Scotland. Independence from government is one of the most fundamental of the Paris Principles.

4. Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

The Paris Principles require that a national human rights institution should have adequate funding. The EOC believes that a budget of £1 million per annum will be insufficient, even given the proposed narrow remit of the Commissioner.

The Equal Opportunities Commission in Scotland currently operates on a budget of almost £1 million per annum, dealing with the single issue of sex discrimination, around 10% of the overall GB budget, reflecting the population proportion. The Commission for Equality and Human Rights is expected to have a budget of £70 million. The EOC has argued that in fact the CEHR will need a budget of £125 million. Given that a percentage of that budget will be spent on human rights matters, but not on devolved human rights matters, the budget of the Scottish Commissioner would appear disproportionately low.

5. What lessons might be learned from other Commissioners/ Ombudsmen set up under the auspices of the Scottish Parliament/Scottish Executive?

The EOC has no detailed knowledge of the operation of other Commissioners in Scotland. However, the EOC is not aware of any gap in protection for the citizens in Scotland compared with

49 †159 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

the citizens of the rest of the UK in respect of the areas covered, but the EOC believes that there is a gap in protection for the citizens of Scotland in relation to the promotion and protection of human rights, as discussed below.

6. Do you have any views on the proposed remit for the Commissioner?

The fact that the Commissioner will be accountable to Parliament rather than Government is highly significant, as discussed above. However, we are of the view that the proposed remit for the Commissioner is unduly narrow in three respects:

i) the powers which are given to the Commissioner are limited The powers currently proposed for the Commissioner do not meet the Paris Principles, which require that national human rights institutions should be given "as broad a mandate as possible". The EOC is concerned in particular to note that the Commissioner's general duty is "to promote awareness and understanding of, and respect for, human rights" and particularly to encourage best practice generally, and to encourage public authorities to comply with the Human Rights Act. We are particularly concerned to see that the Commissioner is not under a duty to "protect" human rights as required by the Paris Principles, and the focus of the Commission's remit appears to be encouraging best practice by public authorities, but not on any violations or breaches of human rights legislation.

A narrow reading of the general duty has implications for the reach of the Commissioner's functions in relation to providing information, guidance and education, in relation to her power to conduct inquiries, in relation to the power to intervene, and in relation to powers to co-operate etc with others. Significantly, the limited powers and functions of the Commissioner will constrain her ability to fulfil what is stated to be the key function of monitoring and reporting on law and practice.

The EOC is surprised, in particular, about the restricted power of the Commissioner to conduct inquiries. Not only is that power restricted to conducting inquiries into the policies and practices of public authorities, there is no power to conduct an inquiry into a particular public authority unless it is the only one with those functions in Scotland, or the subject-matter of the inquiry relates to a breach of the UN and/or European Torture Conventions. The Commissioner will not be able to conduct an inquiry into the policies and practices of a public authority in relation to a particular case. Although the Commissioner will be able to produce reports of its inquiries, it will not be able to legally enforce the findings.

Notwithstanding the limited powers of the Scottish Parliament in relation to the remit of the Commissioner, we consider that the Scottish Parliament does have the competence to endow the Commissioner with far broader powers, and should do so.

ii) the Commissioner should be given additional powers The Paris Principles, at least by implication, envisage that a national human rights institution will have enforcement powers. Promotional and awareness raising powers are only likely to be effective when accompanied by law enforcement powers. We are concerned however to see that the Commissioner has no powers to assist people who claim to be the victims of the violation of their rights: indeed on a narrow reading of the bill, it could be argued that the Commissioner does not even have the power to provide individuals with information about the violation of their rights. We are also disappointed to note that the Commissioner has no powers to bring legal proceedings on human rights issues in the public interest, nor to take judicial review proceedings. The intervention powers of the Commissioner, while welcome, do not allow the Commissioner to operate strategically, for she will only be able to intervene in cases which have already been raised by an individual. Given the limited ability of many to access the courts, this severely limits the protection afforded to individuals, and precludes the ability of the Commissioner to operate strategically.

iii) the Commissioners powers in relation to devolved human rights matters are narrower than the powers which have been given to the CEHR The Equality Bill currently states that the proposed CEHR "shall not take human rights action in relation to a matter if the Scottish Parliament has legislative competence to enable a body to take action of that kind in relation to that matter". While we fully appreciate that this wording was

50 †160 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D necessitated by the fact that the Scottish Commissioner was not in place, we are concerned that this will open up the possibility of a mismatch between the powers of the two bodies and lesser protection for Scottish citizens than those living in other parts of the UK. In particular, the CEHR cannot take action in areas where the Scottish Parliament has legislative competence to create a body, whether or not that body has actually been created, and whether or not that body actually has in fact been given the powers and functions which the Scottish Parliament is able to bestow on it.

Nor can the CEHR consider whether a person's human rights have been contravened if the Scottish Parliament "has legislative competence to enable a body to consider that question".

The "human rights action" which the CEHR cannot take in relation to devolved issues relates to 1) its human rights duties, 2) monitoring the effectiveness of the Human Rights Act, 3) advising central or devolved government about the effect of an enactment or the likely effect of the proposed change of law, 4) monitoring progress towards an equal society, 5) providing information and advice, 6) conducting inquiries, 7) paying out grants and 8) undertaking judicial review and interventions.

In relation to the first five of these duties, it could be argued that the Scottish Commissioner will either implicitly or explicitly be able to carry out these activities. We would however argue that the Scottish Commissioner may not be able to undertake all of these duties to the same extent as the CEHR. This relates particularly to the concerns expressed about the scope of the Commissioner's general duty, which, for example, will arguably restrict the provision of information and advice to promoting, but not protecting, human rights in Scotland.

However, in respect of the last three activities, we have greater concerns. We are concerned that the CEHR's powers to conduct inquiries are broader than the Scottish Commissioners powers in certain important respects. In particular, the CEHR will be able to conduct enquiries into any matter relating to its human rights duties, which are far broader than those of the Scottish Commissioner. Inquiries are not restricted to particular types of organisations. It would appear that the CEHR will be able to conduct inquiries into named organisations and to make a finding that there has been a breach of the Human Rights Act.

We are also concerned to note that the Scottish Commissioner will not have any grant-giving powers, whereas the CEHR will be able to give grants to human rights NGOs in England, for example. This is all the more a concern since the NGO sector in Scotland is much smaller and not nearly so well resourced as equivalent bodies down south. We appreciate that the Commissioner may commission and pay for research etc, to be undertaken but we do not consider this to be a sufficiently equivalent power. Both the EOC and in particular the CRE have made extensive use of their grant-giving powers to ensure activity at the local level.

The most important difference however relates to the power which the CEHR will have to conduct judicial reviews on human rights issues, whereas the Scottish Commissioner will have no such right. As the EOC has demonstrated, judicial review is a highly strategic and cost effective mechanism for addressing breaches of the law which is capable of benefiting large numbers of people, but this strategic tool will be denied to the Commissioner. Both Commissions will have the right to seek to intervene in civil cases which raise a human rights matter, but this relies on an individual taking a case. Given the fact that the Commissioner will not have the power to support individual cases, limited access to justice generally for individuals, and an NGO sector without the resources to fund cases, there is no guarantee that the strategically important cases in which the Commission might helpfully intervene will be litigated. This will severely restrict the ability of the Commissioner to operate at a proactive strategic level, and will sit in stark contrast to the position of the CEHR in England and Wales, and in Scotland on reserved issues. It is envisaged that the CEHR may uncover evidence of an unlawful act during the course of an inquiry, and subsequently take judicial review proceedings alleging a breach of the HRA in the courts, something which it would appear the Scottish Commissioner will not be able to do.

The CEHR can take action in these areas in respect of devolved issues if the Scottish Commissioner gives consent to the CEHR to do so. It would be surprising if a Commissioner would be able to consent to allow another body to do something which it does not itself have power to do.

51 †161 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Indeed, arguably clause 14 of the Scottish bill operates to preclude it from doing so: given that the Commissioner is given powers to consult, act jointly with, co-operate with or assist any other person "in the exercise of any of the Commissioner's functions". Assuming that the Commissioner can in fact consent to allow another body to undertake action (including enforcement action) when it does not have the power to do so itself, it will in any event make for an awkward relationship between the two Commissions, and the protection and promotion of human rights in Scotland will very much be dependent on the state of relations between the Scottish Commissioner for Human Rights and the Commissioners on the GB Commission.

It is important to bear in mind too that the CEHR will be able to support individuals taking cases related to the equality enactments, which can include a challenge under the HRA. Even where the equality element of the case falls away, the CEHR will be able to continue to fund the claim even though it is a stand-alone HRA claim. The result is that stand-alone HRA cases related to equality issues (whether reserved or devolved) will be capable of being funded by a Commission in Scotland, although not by they human rights Commissioner.

A Memorandum of Understanding between the two bodies will be essential, and will go some way towards ensuring clarity of roles and remit. However, the powers and functions of the two bodies as currently framed will impede, rather than foster, good relations between them.

Conclusion

Notwithstanding the fact that the CEHR has limited human rights powers in England, the EOC considers that human rights are best protected and promoted by a Commission which is separate from the Equality Commission, and set up in accordance with the Paris Principles. The Northern Ireland model with an Equality Commission and an HRA with powers to give assistance to individuals, and to bring proceedings in its own name, as well as monitoring the law and conducting investigations, serves as a model to which the EOC considers that all nations of the United Kingdom, including Scotland, should aspire. While the creation of the post of Scottish Commissioner for Human Rights is a welcome move, the EOC considers that the role and remit do not go nearly far enough to ensure the creation of a human rights culture in Scotland.

Muriel Robison Director of Legal Affairs Scotland 18 November 2005

SUBMISSION FROM SCOTLAND’S COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE

What this is about …

In 1998 the European Convention on Human Rights (ECHR) was incorporated into Scots law through the Human Rights Act 1998 and the Scotland Act 1998.

The Human Rights Act requires public authorities to comply with the ECHR, whilst the Scotland Act provides that actions of the Scottish Ministers and Acts of the Scottish Parliament that do not comply with the ECHR are unlawful.

In line with other countries, it is proposed that a human rights commissioner be appointed to improve awareness of, and compliance with, human rights. In March 2000, the Lord Advocate and the then Minister for Justice stated that the Executive was considering the establishment of a human rights commission. This was followed by a public consultation and subsequent announcement in the Partnership Agreement (2003), which detailed the Executive’s programme up to 2007, that there would be a human rights commission in Scotland. This Bill intends to deliver on this commitment.

Since the Executive published its proposals to create a human rights commission in Scotland, the UK Government has also announced its intention to create a Commission for Equality and Human Rights (CEHR) for Great Britain. This is being taken forward by the Equality Bill before the Westminster Parliament. The CEHR’s functions and responsibilities will be similar to those

52 †162 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D proposed for the Scottish Human Rights Commissioner (SCHR) but, whilst the CEHR’s human rights role will be restricted to reserved human rights issues and be a matter for Westminster, the SCHR will focus on devolved human rights issues.

CONTENTS

1. Role of the Commissioner for Children and Young People 2

2. United Nations Convention on the Rights of the Child 2

3. Responses to questions 3

3.1 Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not? 3 3.2 What would such a body add to existing mechanisms for protecting human rights in Scotland? 4 3.3 How should the Commissioner be accountable? 4 3.4 Do you think that the proposed funding of £1m per annum will be adequate given the proposed remit of the Commissioner? 5 3.5 What lessons might be learned from other Commissioners/Ombudsmen set up under the auspices of the Scottish Parliament/Scottish Executive? 5 3.6 Do you have any comments on the proposed remit of the Commissioner? 6

1. Role of the Commissioner for Children and Young People

As Scotland’s Commissioner for Children and Young People, I welcome the opportunity to comment on the Scottish Commissioner for Human Rights Bill, which was introduced in the Scottish Parliament on 7 October.

My office of Commissioner was established by the Commissioner for Children and Young People (Scotland) Act 2003. My general function is to “promote and safeguard the rights of children and young people.” In particular, I must review law, policy and practice relating to the rights of children and young people with a view to assessing their adequacy and effectiveness. Specific regard must be had to relevant provisions of the United Nations Convention on the Rights of the Child (UNCRC), especially those requiring that the best interests of the child be a primary consideration in decision making, and that due account be taken of the views of affected children and young people.

I must exercise this responsibility towards all children and young people who are under 18 years of age, or under 21 if they have been looked after by a local authority or in their care.

2. United Nations Convention on the Rights of the Child.

The United Nations Convention on the Rights of the Child was passed by the UN General Assembly in 1989 and ratified by the UK in 1991. Ratification commits the UK to bring its law, policy and practice into line with the Convention. Whilst not directly enforceable in UK courts in the way that the European Convention on Human Rights now is, it should be noted that the European Court of Human Rights increasingly makes reference to the Convention on the Rights of the Child in its judgments, as a common standard amongst Member States22. Section 2 of the Human Rights Act obliges UK courts to take account of European jurisprudence in making their own decisions. The UNCRC sets out the fundamental human rights that all children and young people are entitled to. It sets out minimum benchmarks in rights for children rather than “best practice.” Countries are thus encouraged to exceed the standards laid out in the Convention, but must not fall short of its basic requirements.

22 A v UK (1999) 27 EHRR 611

53 †163 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

3. Responses to questions

3.1 Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not? I very much support the establishment of a Scottish Commissioner for Human Rights. This will be an important specialist body which will help to promote a culture of human rights in Scotland. A Scottish Human Rights Commissioner should also play an active part in ensuring compliance with international treaty obligations such as the European Convention of Human Rights and the United Nations Conventions on the Rights of the Child, but also other international instruments to which the UK is a party. These include the European Convention Against Torture (CAT) and the Convention for the Elimination of Discrimination against Women (CEDAW), which place very specific obligations and responsibilities on Scottish public authorities.

The Scotland Act clearly states that devolved powers include the observation and implementation of international obligations (section 7 of Schedule 5 of the Scotland Act 1998). It is therefore incumbent on the Scottish Parliament to ensure that human rights are protected in accordance with these international obligations.

I am also strongly of the opinion that it is right to proceed with the creation of a separate Scottish Commissioner for Human Rights. The fact that Scotland has a separate legal system with its own very distinctive identity underlines the need for a specific body in Scotland.

I also recognise the substantive differences between the legal obligations on public authorities in Scotland and those in England and Wales. This has particular implications for the Scottish Executive and Ministers, but also for the Scottish Parliament, which has specific responsibilities in relation to human rights. It seems reasonable therefore to proceed with a distinct Scottish Commissioner to reflect this legal framework.

3.2 What would such a body add to existing mechanisms for protecting human rights in Scotland? Whilst a substantial part of my remit is to have regard for the rights of children and young people as set out in the United Nations Convention on the Rights of the Child, I would very much wish to see a culture of human rights which recognises that children are human too. I would be very supportive of the Scottish Human Rights Commissioner in taking up the children and young persons’ dimension of general human rights issues, and would see this as complementary to my work. My remit is broader in respect that it is not restricted to “public authorities.” My role is also more proactive and participatory, with a great emphasis on involving children and young people in my work. The inclusion of children’s rights within the remit of the SCHR will ensure that the Commissioner has the broadest possible remit. Excluding children from this could lead to gaps in the protection of their rights. For example, my legislation does not confer an explicit power to intervene in civil cases nor to enter premises.

I recognise that there will be some overlap between my role and that of the Scottish Commissioner for Human Rights and would support the idea of a memorandum of understanding which would help to clarify our roles. This would also help to ensure a degree of independence by leaving it for us to determine the best course of action and how to take forward our relationship. I would approach this very much in the spirit of co-operation.

The Scottish Human Rights Commissioner would also help to ensure that the UK respects its treaty obligations and, in particular, that any UK reports submitted under the treaty monitoring process take into account the Scottish dimension and its unique legal system. A specific Scottish input into any UK reports would also help to ensure that statistics are comparable, that information is accurate and that financial years tally.

3.3 How should the Commissioner be accountable? The Commissioner will be accountable in a formal sense to the Parliament but, in a more general sense, to the people of Scotland whose human rights will be the central focus of the Commissioner’s work.

54 †164 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

The Commissioner will consider legislation, policy and practice relating to Human Rights and may make a recommendation and report to the Parliament. The Commissioner will not have any powers to direct Parliament, so his or her role will focus on promoting rights and persuading Parliament to keep the promises that have been made via international instruments.

The requirement that the Commissioner produces an Annual Report to the Parliament, which includes the steps taken during the year to fulfill each of the Commissioner's functions, ensures that the Parliament maintains a role in assessing the Commissioner’s effectiveness.

Direct accountability to Parliament rather than to the Scottish Ministers ensures transparency by establishing a formal channel of communication with the elected representatives of the people, without affecting the independence of the Commissioner.

As the Commissioner will be a recipient of public funds, it is essential that the Parliament scrutinize the Commissioner’s budget to ensure proper accountability. However, independence is essential to the credibility of the Commissioner and success in fulfilling the statutory functions of the office. The key aspects of independence, such as budget, appointment, re-appointment, removal and reporting must be protected. I comment further on that at 3.5 below.

3.4 Do you think that the proposed funding of £1m per annum will be adequate given the proposed remit of the Commissioner? The Commissioner would need to be sufficiently resourced to fulfil the extensive and important duties outlined in the Act.

The principle that a Commissioner should be independent from government is crucial as regards funding. The Paris Principles23 are very clear that a Commission should not be subject to financial control by the government which might affect this independence and notes that an infrastructure should be provided which is suited to the smooth conduct of its activities and which should enable it to have its own staff and premises.

3.5 What lessons might be learned from other Commissioners / Ombudsmen set up under the auspices of the Scottish Parliament/ Scottish Executive? It would be useful for the appointed Commissioner to learn from the experience of current Commissioners and those who have a similar function. I would be happy to share my experiences and work in the spirit of ongoing co-operation.

It may be helpful for Parliament to address lingering issues about the legal status of Commissioners. My equivalents in the other jurisdictions of the UK have the status of “corporation sole”. This status does not exist in Scotland. My attempts to have my own status clarified, with its implications for issues such as liability and indemnity, have been unsuccessful so far.

I would also suggest that independence is better protected by a single term of office of, say, seven years, than by two successive terms. The fact that a reappointment is possible can lead to concern that a person might be insufficiently critical in order to secure a second term. In my own case, a Sunday newspaper recently reported that politicians were threatening to “ditch” me for the stance I have taken on certain issues. The fact of a reappointment procedure was specifically mentioned. This kind of comment can be interpreted as attempted intimidation24.

I also note that the Bill does not set out the grounds for dismissal, while my own legislation does.

3.6 Do you have any comments on the proposed remit of the Commissioner? The proposed remit includes a general duty to promote human rights and increase awareness. This is a crucial function as it will help to ensure that everyone in Scotland understands their rights and

23 The Paris Principles are a set of principles formulated by the International Workshop on National Institutions and endorsed by the UN General Assembly in 1993. These set out the mandate and independence of human rights commissions, and can be accessed at: www.ohchr.org/english/law/parisprinciples.htm. 24 “Child Czar told to toe the line”: Sunday Times, 23 October, 2005.

55 †165 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

responsibilities and will also foster the development of a human rights culture in Scotland. One would also expect that a culture of respect for human rights would lead to fewer violations of the ECHR and a consequential decrease in the number of human rights cases being taken through the courts.

The most effective way of ensuring that people understand and appreciate the principles of human rights is through education. As such, the training and guidance function of the SHRC must be seen as an extremely important part of the Bill.

I have some hesitations about the wording of clause 6(1) in relation to the inquiry function, where it says that the Commissioner may not “question the findings of any court or tribunal.” There is an analogous provision in my own legislation, but it is differently worded. I can appreciate the policy intention that an inquiry should not re-run a court case or “second guess” a court, but I would be concerned if it were interpreted in such a way as to inhibit an appropriate comment on the way in which law is developed and applied by courts.

I also very much welcome the powers of entry, inspection and interview (clause 8 of the Bill). These are important powers which will facilitate the SHRC’s monitoring of human rights compliance.

I am however a little concerned that, under Schedule 3, paragraph 1(2) (notification of intention to exercise these powers), the notice period is a minimum of 14 days. This seems excessively long. Further, paragraph 3 allows a person to apply to the sheriff for cancellation of any proposal to exercise a power of entry. There is no timescale set out within which such applications ought to be considered and determined. Delay could undermine the purpose of the Commissioner’s action.

A key part of the Commissioner’s remit will be the power to conduct inquiries. The power to summon witnesses and obtain other information and documents is included in the Paris Principles as a prerequisite of any national institution and is an extremely important one that should not be compromised. This is a very important part of the Bill.

The power to intervene in civil proceedings is also an extremely important function and one that adds significant value to current mechanisms to monitor human rights.

Kathleen Marshall Scotland’s Commissioner for Children and Young People 17 November 2005

SUBMISSION FROM SCOTTISH HUMAN RIGHTS CENTRE

The Scottish Human Rights Centre (SHRC) is an independent non-government organisation which aims to promote human rights in Scotland through provision of advice, information, education, research, scrutiny of legislation and monitoring the implementation of international human rights obligations. The Scottish Human Rights Centre has an extensive membership of both individuals and affiliates organisations, including statutory bodies, public authorities, private bodies, voluntary organisations.

Written Note of Evidence by the Scottish Human Rights Centre

The SHRC welcomes the inclusion of the Bill in the Legislative Programme of the Scottish Executive.

The following are queries or concerns regarding the bill, in particular learning from existing commissions experiences, and comparing the provisions with the CEHR under the Equality Bill to ensure that there are no gaps or loopholes.

Long title

This should read “An Act of the Scottish Parliament to provide for the establishment and functions of the Scottish Commissioner for Human Rights and for connected purposes.”

56 †166 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Reason: this remains in keeping with previous drafting precedent (cf CYP, and SIC) and allows for wider amendment in future. It is understood that the Scottish Executive will take advice on this but may be amenable in principle.

Clause 1 – SCHR

Clause 1(1) should read “There shall be a Scottish Commissioner for Human Rights…”

Reason: Same as for the Long Title

Clause 2 – General Duty

The remit of the Commissioner should include both the protection and promotion of human rights.

Reason: There appears to be a major discrepancy between what is provided for the SCHR and the CEHR in terms of their respective remits. Given that there will be areas of parallel responsibility between the two bodies, there is no reason why the SCHR could not include protection of human rights, as this does not necessarily imply that the SCHR will have enforcement powers. Protection of Human Rights can be better achieved through raising awareness with individuals and organizations, through investigations etc.

SHRC would also question whether Clause 2 (3) is necessary, having regard to other legislative provisions, which would apply to the Commissioner.

Clause 5 and 6 – Inquiries

SHRC welcomes the principle that the Commissioner will be able to conduct Inquiries, but considers that the extent of the Commissioner’s powers proposed in the Bill are inadequate. Specifically, SHRC are concerned that the Clauses only apply to Scottish Public Authorities.

Reason: As currently drafted, the Bill creates a substantial discrepancy between the powers of the SCHR and the CEHR, whereby the CEHR can conduct an investigation into any agency, but the SCHR is restricted to Scottish Public Authorities. Given the scope of the CEHR remit – and also taking into account the wide brief of the Northern Ireland Human Rights Commissioner, there is no obvious justification for the SCHR not holding a mandate to investigate any agency it chooses.

Accordingly, the scope of the Bill appears to have been unnecessarily restricted and in some respects defeats its overall purpose. One example is how the Clauses might apply to bodies such as the SPS and individual prisons. It seems that the SCHR would be able to investigate prisons generally but not a specific named prison.

It is accepted that joint working with the CEHR on Inquiries will be both possible and desirable in some instances, and SHRC would encourage the respective shadow bodies to begin work on Memoranda of Understanding (M of U) as soon as possible. It is not apparent why the SCHR should enter this process with restricted powers.

SHRC also considers that the powers of the SCHR to obtain evidence during an Inquiry are insufficient as presently drafted.

Reason: The SCHR does not have an express power to include service users or other third parties who may have relevant information as part of any Inquiry under the Act. Whilst resort to powers of compulsion is only likely to occur rarely, the absence of a power to obtain potentially relevant evidence may devalue any Inquiry conducted by the SHRC.

Clause 6(5) should begin “Where it is necessary or appropriate”.

Reason: This amendment clarifies and strengthens the role of the SHRC in conducting Inquiries into the specified Institutions.

57 †167 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Clause 6(6) should be less restrictively drafted.

Reason: SHRC considers that part of the function of the SCHR should focus on the links into UK obligations to report on the specified treaties. Regard should also be had to the Paris Principles and the powers which will be required in order for the SCHR to be recognized as a Class A NHRI (National Human Rights Institution).

Clause 7 – Evidence

SHRC wish the SCHR to have unlimited power to request evidence from any person in the course of conducting an Inquiry.

Reason: Reference is made to SCHR’s evidence in relation to Clauses 5 & 6. SHRC considers that evidence obtained should not be limited to Public Authorities, and at the very minimum should be widened specifically to cover any person to whom the Public Authority contracts out services.

Clause 8 – Powers of entry

SHRC supports and welcomes this clause

Clause 10 – Confidentiality

Whilst SHRC recognises the appropriate nature of the protection afforded to those working on behalf of the SCHR, it is concerned that the Clause does not expressly cover any person who prompts an Inquiry through whistleblowing, or some other form of report to the SCHR.

Reason: Any situation in which abuse of Human Rights is suspected to have occurred is necessarily sensitive. Both victims and the public generally should not be dissuaded from raising matters with the SCHR for fear of legal action or other adverse repercussions.

Clause 11 – Power to intervene

Again, SHRC welcomes the principle underlying this Clause, but would suggest that it would be more usefully drafted if it gave the SCHR the right to intervene without leave of the court. However, this would not entail removal of the option for the SCHR to intervene at the request of the court.

Reason: At present, anyone can ask a court for leave to intervene in a case. An historically narrow approach to qualification of title and interest means that Scotland does not have a tradition of third party interventions, or any history of mounting an action popularis.

In this respect, parity with the CEHR is not acceptable, as the decision on whether to intervene in any action will be outwith the control of either body. The granting of a power to intervene without leave does not oblige the court to follow the SCHR’s suggestions.

Further, the power to intervene does not extend to tribunals – such as the mental health and asylum tribunals – or to children’s hearings where significant human rights issues may arise. Most significantly, the power to intervene is restricted only to civil litigation, as the Clause is presently drafted. SHRC also observes that the absence of a power to initiate or fund litigation in the name of the SCHR, or to take up individual cases, contrasts significantly with the role previously assigned to bodies such as the EOC. It may also enhance the role of the SCHR, if an express obligation to mediate issues via ADR were made available.

Clause 16 – Giving of notice

SHRC note that the Clause as drafted is not specific in relation to certain issues of accessibility.

Clause 17 – Scottish Public Authority

In accordance with the reasoning expressed previously, SHRC would seek the removal of this Clause as unnecessary if the wider role for the SCHR is adopted.

58 †168 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Clause 18 – Interpretation

SHRC considers that the definition of “Convention Rights” may suggest a hierarchy of human rights as compared to those created by other Treaties. Reference to the definition of “Equality” as stated in the Scotland Act 1998 also appears appropriate.

Schedule 1

SHRC considers that membership of the House of Lords and / or the EU Commission should also be grounds for disqualification from appointment as the SCHR. There is no process presently specified for governing the removal of a Commissioner.

Schedule 3

SHRC considers that the effectiveness of the SCHR may be compromised considerably in the absence of a power to make unannounced inspections or to react more swiftly to urgent situations such as an outbreak of riots hunger strikes in prisons.

Other Matters

x SHRC wishes consideration to the SCHR being required to produce a strategic plan and / or programme of work.

x SHRC wishes an explicit statement by the Scottish Executive of intent as to the standing with the UN of the SCHR, and whether it will be deemed to be a National Human Rights Institution. SHRC aspire to the SCHR becoming a Class A NHRI as is the case for the NIHRC. It understands that the CEHR will be accredited at Class C or D.

x SHRC wishes the Scottish Commissioner and Chair of the UK Commission to be appointed on a full – time basis, failing which for at least four days per week, in reflection of the foreseeable demands of the posts.

Scottish Human Rights Centre 25 November 2005

SUBMISSION FROM AMNESTY INTERNATIONAL SCOTLAND

Do you think a Scottish Commissioner for Human Rights should be established? If so why?

Amnesty International believes that it is important that a Scottish Commissioner for Human Rights should be established because: x The Commissioner will be able to have an overarching role in overseeing the compliance of the Scottish Executive, Parliament and public authorities in their compliance with international human rights instruments and the ECHR x The Commissioner will dispel misleading impressions of human rights and create a better perception of the need for strict human rights compliance x The Commissioner will assist public authorities to respect human rights and comply with them x The Commissioner will be able to provide a report to the International and European human rights monitoring committees about compliance in Scotland x The Commissioner would be able to scrutinise Scottish legislation and statutory instruments for human rights compliance and advise parliamentarians of any potential breaches x The Commissioner would be able to reflect the different legal, cultural, educational and social context of Scotland

59 †169 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

What would such a body add to existing mechanisms for protecting human rights in Scotland?

The only body which offers human rights protection at present is the Scottish Commissioner for Children and Young People. Amnesty International believes that it is important to have a Commissioner whose task is to oversee the rights of all those living in Scotland.

Amnesty also believes that it is important to have a well-funded body which can provide independent reports to the international human rights monitoring committees which oversee the implementation of international human rights instruments to which the UK, and therefore the Scottish Executive, is a signatory.

How should the Scottish Commissioner be held accountable?

The section of accountability in the Bill and supporting papers seems to be satisfactory. Amnesty welcomes the fact that the Commissioner will be accountable to Parliament.

Do you think the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

If the Commissioner were to have powers to investigate individual complaints, and to conduct mediations, we would not consider the funding sufficient. As it is, it may be sufficient for the remit described.

What lessons might be learned from other Commissioners/Ombudsmen set up under the auspices of the Scottish parliament/Scottish Executive?

Amnesty International has no comment to make on this question

Do you have any views on the proposed remit for the Commissioner?

The Paris Principles set out by the United Nations describe how a Human Rights Commission should function. Under Section A: Competence and responsibilities, Section 2 states “A national institution shall be given as broad a mandate as possible”. We are therefore disappointed that the Bill gives the Commissioner power to conduct inquiries into the policies and practices of (a) a particular Scottish public authority (b) Scottish public authorities generally or (c) Scottish public authorities of a particular description, in connection with the matter. We are concerned that to limit the scope of the Commissioner to public authorities alone leaves people vulnerable to human rights abuse by private authorities. For example, private care homes have been known to withhold food and medicine from elderly people in their care, and they would not be covered under this Bill. Whilst we recognise that this limitation is governed by the terms of the Scotland Act and the Human Rights Act, we would urge the Scottish Executive to seek an amendment to the Scotland Act to allow the Commissioner a broader scope of inquiry.

Rosemary Burnett Director, Amnesty International Scotland 16 November 2005

60 †170 2467 14 DECEMBER 2005 2468

to do with the role of Parliament and the Executive Scottish Parliament in relation to the European convention on human rights. Of course, the Parliament must not legislate Justice 1 Committee in contravention of the European convention on human rights, and our courts in Scotland can Wednesday 14 December 2005 consider whether legislation is within the competency of the European convention. There is [THE CONVENER opened the meeting at 10:21] therefore a specific reason in Scotland for having a commissioner that can supervise and oversee Scottish Commissioner for such issues. Human Rights Bill We do not have an organisation in Scotland that looks at the broad overall picture of promotion and protection of human rights. Some organisations The Convener (Pauline McNeill): I welcome st deal with the matter, but they have limited roles, everyone to the 41 meeting in 2005 of the Justice either as a result of their statutory powers or 1 Committee. All committee members are present because of limited resources. Some non- and I welcome once again the committee’s governmental organisations that have limited adviser, Professor Jim Murdoch, and Sarah resources and other organisations, some of which Harvie-Clark and Murray Earle from the Scottish Bruce McFee mentioned, can deal with human Parliament information centre, who join us for item rights issues that relate to their remits. However, 1. I remind members to switch off anything that will an organisation that considers human rights interfere with the sound system if they have not across the board and which can increase its already done so. authority and expertise on the matter is important I welcome our first panel of witnesses on the for Scotland. Scottish Commissioner for Human Rights Bill and Mr McFee: The other panellists might want to apologise for keeping them waiting. Lynn Welsh is answer, but I have another question for Muriel from the Disability Rights Commission, Muriel Robison before they do. You say that other Robison is from the Equal Opportunities organisations are limited by their statutory powers, Commission and Professor Kathleen Marshall is but given the limited functions and powers that the Scotland’s commissioner for children and young commissioner will have under the bill, how much people. I thank them all for their written more powerful than the existing bodies will the submissions and for coming to give oral evidence commissioner be? this morning. Bruce McFee has the first question. Muriel Robison: That is a good question. You Mr Bruce McFee (West of Scotland) (SNP): I may have noticed from the Equal Opportunities want to tease out your views on the need for a Commission’s response that we welcome the commissioner for human rights in the first creation of a human rights commissioner, but that instance. What powers should a commissioner we are concerned that the bill will not give the have, do you think that there should be a commissioner the required scope to operate. Two commissioner, and what are your views on the different questions arise: the first is whether a bill? Given the plethora of organisations— commissioner is needed and the second is ombudsmen, inspectors, trade unions and other whether the bill is fit for what is needed. We argue pressure groups—that currently take up many of that it is not in its current form. the cases that a commissioner might take up, why does Scotland need a human rights Lynn Welsh (Disability Rights Commission): commissioner? We agree that, in principle, a Scottish commissioner for human rights is required. The Muriel Robison (Equal Opportunities Disability Rights Commission obviously has Commission): The Equal Opportunities concerns about the human rights of disabled Commission has a specific interest in the interplay people. Huge issues exist that connect human between equality—sex equality in particular—and rights and disability, but we cannot take action on human rights. Since 1999, we have been part of any of them and we have seen no one else take the Scottish human rights forum, which is an action on them. We would welcome a body that informal organisation that has been in existence could take such action but, like Muriel Robison, we for a number of years. We have been arguing hope that the commissioner will have more power since we became involved in that forum that it is to carry out essential work. important to have a human rights commission, or equivalent body, in Scotland. Kathleen Marshall (Commissioner for Children and Young People): I agree with the There are specific reasons for having a proposal to establish a Scottish commissioner for commission in Scotland, whether or not there is human rights who will, as I tried to explain in my one for Great Britain. One of the main reasons is written submission, complement my functions. I 61 †171 2469 14 DECEMBER 2005 2470

certainly hope that the commissioner for human Lynn Welsh: I agree. As Muriel Robison said, it rights and I will have a fruitful collaboration once is important to have a body that interacts directly the post is established. with the Scottish Parliament. That will be a great bonus of having a Scottish commissioner for I want a commissioner to be established for human rights, and it is better to have a three main reasons. The first is about awareness commissioner even in the form that the bill raising. In my work, I come across many situations proposes than to have no such commissioner that in which people wave the human rights flag is answerable in this forum. inappropriately—people sometimes do not understand what human rights are about, so we Muriel Robison: We need to consider the need to raise awareness of what they are. A interplay between the Scottish Commissioner for second reason is that it is important that we have Human Rights Bill and the Equality Bill that is somebody who is a constant reminder of human currently before the Westminster Parliament. rights and who is almost the voice of our There is an expectation in the Equality Bill that a conscience. It is easy to make broad statements body of this sort will be set up in Scotland. As that about human rights and then to put them in the bill stands, there would be a massive gap in the background when their implementation becomes protection of Scottish citizens if no Scottish inconvenient, uncomfortable or expensive. We commissioner were set up. As an alternative, the need a commissioner to keep saying what has powers of the commission for equality and human been promised and what is required to respect the rights, which will be set up by the Equality Bill, promises. could be extended to Scotland in relation to equality issues only. Otherwise, there is The third reason why we need a commissioner importance—even if it is only symbolic—in having is that the commissioner will highlight the a Scottish commissioner. consequences when public authorities do not respect human rights in their work. That role is not Mr McFee: Can we examine part of that gap? I as important in the Scottish Commissioner for accept that there will be a gap if the position of Human Rights Bill as it is in the Commissioner for commissioner is not created, but will not there be Children and Young People (Scotland) Act 2003, a gap even if the position is created as it is because a breach of the ECHR carries more proposed? Many people identify a gap in that the explicit legal consequences than does breach of commissioner will be unable to investigate the United Nations Convention on the Rights of individual cases. Should the commissioner be the Child. However, the fact that the commissioner allowed to investigate individual cases? What will be able to ask formal questions is important. In other powers are missing from the proposed my work, doing so has already given the commissioner’s role? Convention on the Rights of the Child higher Lynn Welsh: We believe that the commissioner status, because people know that someone is should have the power to consider specific issues looking and will ask questions. That will also be that are brought to their attention. As drafted, the the case if a Scottish commissioner for human bill would not enable the commission to do that. rights is established. We are also concerned about the restriction on the Mr McFee: You say that broad statements are bodies that the commissioner will be able to made, but when it comes to implementation, the investigate: the commissioner will be restricted to statements can start to lose their shine. If the consideration of an individual organisation only if Executive does not change its view on the powers another organisation carries out the same and remit of the proposed commissioner, should functions. That means that the commissioner will the commissioner still be created or will that be, not be able to examine a local authority or a health frankly, just another sop or another broad board. We have concerns about that. That is statement that will not be backed up? different from the powers that the British body is likely to have, which we would like to be extended to the Scottish commissioner. 10:30 Kathleen Marshall: What is proposed would be There is also the issue of the commissioner’s better than not having a commissioner, although ability to support cases in court and to raise there are questions about the scope of the judicial reviews. The British body is being given commissioner’s remit. It will depend largely on the power to intervene and to raise judicial how the commissioner’s post is implemented and reviews. how their role is taken forward in the public forum. Muriel Robison: The commissioner ought, There are questions about who will be appointed, broadly speaking, to have enforcement powers. how the office will be set up and how it will decide Beyond that, there are several gaps, one of which to operate. The role of the commissioner could be Bruce McFee identified. The British commission stronger as, I am sure, the other witnesses will for equality and human rights will have the power agree. of judicial review in relation to human rights 62 †172 2471 14 DECEMBER 2005 2472 questions, which the Scottish commissioner will practices of authorities and not necessarily with not have. We are also concerned about the scope individual cases. If it came to my attention that a of the Scottish commissioner’s power to conduct local authority had cut its budgets for children’s inquiries. The United Kingdom commission will be services without taking account of article 3 of the able to examine individual organisations, to report United Nations Convention on the Rights of the whether they have breached human rights and Child and without consulting children, I could then to challenge that through judicial review. The investigate the authority’s policies and practices. I Scottish commissioner will not have that power, so could not examine the individual case, but I could there will be a gap in protection. use it as an example of the general issue. I am Kathleen Marshall: The ability to investigate concerned that the human rights commissioner will individual cases was central to the debates that not be allowed to take that approach. led to the setting up of my post. About half the Lynn Welsh: It is not clear to us why the children’s commissioners around the world can restriction exists. investigate individual cases and half cannot. Parliament decided that my role would be more Muriel Robison: It is interesting that you used strategic, but that it would keep an eye on it. The the word “swamped”. Obviously, individuals can argument against the human rights commissioner take cases to the other equality commissions. It is having that power is similar: they could be important that the commissioner be able to swamped by individual cases. So far, I have not operate strategically and that the commissioner found that not having the power is a restriction, but has appropriate powers, which should act as a it is early days and I will keep an eye out for deterrent, as they do in the New Zealand Human situations in which I might feel that it would be Rights Commission; its promotional role is helpful to be able to investigate individual cases. paramount and its enforcement role is secondary. We do receive individual inquiries; I have an Recently, I spoke to the chief commissioner of the inquiries officer who tries to guide people towards New Zealand Human Rights Commission; she the appropriate place and who monitors what said that it rarely uses its powers because the fact happens. that the office exists is an extremely powerful deterrent. The scope in the bill of the bodies that the commissioner will be able to investigate is narrow. The Convener: I have a supplementary My investigatory powers extend to service question on that. I hear what you are saying and providers that could be in the public, private or you are giving helpful examples, but I presume voluntary sector. I appreciate that public that you accept that, if that dramatic scenario authorities are perhaps specified because happened and an agency stopped providing convention rights are a particular focus of the bill, children’s services, Parliament might have but the bill states that human rights also include something to say about it. I just thought that you “other human rights contained in any international might want to set the context, which is that there convention, treaty or other international instrument ratified are elected members. If a local authority stopped by the United Kingdom.” providing children’s services, it is inconceivable The bill has special regard to convention rights, that Parliament would not be able to achieve but it recognises that there are other human rights something. instruments, so it may be worth while to ask why Kathleen Marshall: I am not saying that such the bodies that are subject to investigation are an event is likely. A more likely scenario is a defined so narrowly. disproportionate cut in children’s services. MSPs Mr McFee: That is an interesting point. If a case bring situations to my attention, as do members of arose in which a local authority was not observing the public and community organisations. If there children’s rights, you would have the power to was such a cut, MSPs would look to me to ask investigate but the proposed human rights questions and to intervene. I accept that legal commissioner would not. If somebody was denied questions would arise if a local authority were to housing because they were black or because of cut all its children’s services. I am not saying that their sexuality or religion, the human rights that would happen— commissioner could not intervene, but if the The Convener: If services were cut in Stewart housing department applied thumbscrews to that Stevenson’s constituency, he would be the first to person the commissioner could intervene because get on his feet. torture would be involved. Have you had any indication of why the provision is so restrictive? Do Stewart Stevenson (Banff and Buchan) you understand the rationale behind it, other than (SNP): They would not dare. the potential for the commissioner to be swamped Kathleen Marshall: Stewart Stevenson might by individual cases? ask for a public inquiry or an investigation. The Kathleen Marshall: I do not understand it, given questions are what he would ask for and what that the bill is concerned with the policies and mechanisms are in place to deliver that. We would 63 †173 2473 14 DECEMBER 2005 2474

have to consider the options that were available would lose the crucial interaction with the Scottish and ask which was the most appropriate. Parliament, which is the idea that the Parliament, not the Executive, will be responsible for the Mr McFee: Absolutely. MSPs raise cases all the commissioner. The commissioner will be time but, of course, the results depend on whether responsible to Parliament and will be able to assist anybody pays attention and implements and advise. That would not be available from a measures. British body—the CEHR, for example, will not be The Convener: Speak for yourself. able to do that. It will be invaluable to have a body in Scotland that understands Scotland in its widest Mr McFee: Well, the issue of equal pay in social sense. Glasgow is a classic example. It has been raised for many years but nothing has happened. Muriel Robison: As I think I said at the beginning, our powers are limited. We can I will move on. If there were enough cases out consider human rights only as they relate to there to swamp the commissioner, would that be equality, like the bigger organisation, so the scope added justification for the power? is limited. As I said, the value is in having an Lynn Welsh: We must consider the difference overview and broader consideration of all human between taking cases and undertaking rights in the convention and beyond that, which investigations or inquiries. We have talked mainly the Equal Opportunities Commission would not about conducting an inquiry into a body. Cases have the power to examine in any event. Other may prompt an inquiry or be the focus or basis of existing bodies that deal with human rights also one. As Muriel Robison said, both our have a limited remit. commissions support cases strategically so that Kathleen Marshall: I agree. There is a point in we are not swamped. That power is useful and having a Scottish commissioner for human rights. has proved to be invaluable in working out what My remit is focused on a particular group in the legislation is and how it should work, for Scottish society; that is also legitimate, because a example. There should be a power to consider democracy involves a debate in which we must individual cases strategically, but that is separate hear different voices, and sometimes we must give from conducting inquiries. added strength to the voices that are most likely to Mr McFee: You would expect the commissioner be drowned out. Children and young people, to exercise a little restraint in taking cases, so that people with disabilities and other people who are they were not swamped. within the equalities remit fall into that category. Muriel Robison: Yes. The particular value of a That is a balancing act. The rights are not commissioner is that they can have an overview of necessarily conflictual; the human rights the good test cases to progress. In contrast to that commissioner would have an overview, but there is the situation when individuals who can afford it would be different voices in the debate. That choose to take their issue to court. The bill balance is valuable. provides the power to intervene, but a case must Mrs Mulligan: You think that debate is helpful, reach court before the commissioner can too, and would not mean that opposing views were intervene. The value is in having the overview and put forward. the ability to progress the best test cases, to encourage the culture of human rights in Scotland Kathleen Marshall: There could be opposing appropriately. views on some issues, but that would be part of the debate. As I have travelled around speaking to Mrs Mary Mulligan (Linlithgow) (Lab): My people, one of the main messages that I have tried question will be brief, because it was almost to send is that children’s rights are part of human answered by the previous comments about having rights and that children’s and adults’ rights do not an overview. Bruce McFee said that other people necessarily conflict. There will be situations in have addressed human rights issues but that it is which one tries to achieve a balance, but in recognised that a gap will arise. You have made general, there is a community of interest. The clear your feeling that the commissioner should fill point is that if there is not a specific focus on that gap. However, would further resourcing of, groups of people who are inherently and additional powers for, your organisations be disempowered and cannot vote—such as children an alternative to having one office that takes a and young people—the chance is that their voices broader-brush approach? Given your experience, and interests will be overlooked by people with would it not be better for you to look at matters louder voices. Debate is valuable and democratic. from your perspective? Lynn Welsh: We are looking ahead to a time 10:45 when a single body, rather than individual commissions, operates. My answer to the question Stewart Stevenson: Your psychic powers have is no, because what Mary Mulligan suggests pre-empted one of my questions. However, I 64 †174 2475 14 DECEMBER 2005 2476 would like to pick up on a narrow point that Muriel Stewart Stevenson: What is that value? Robison, I think, made earlier about oversight of Muriel Robison: As I said, knowledge of what is the Scottish Parliament’s legislation. To what happening on the ground in Scotland and perhaps extent is there a problem that you are trying to throughout Britain and in other countries in the solve in that respect? A duty of the Presiding world will be brought into the process. There Officer’s office is to ensure that our legislation is should be a centre of expertise on human rights ECHR compliant; indeed, this very day, I have issues that has expertise that another organisation seen that office’s hand in a manuscript cannot possibly have unless it wholly focuses on amendment for Thursday’s debate on the Family human rights. Law (Scotland) Bill that was produced because there was an omission in what the amendments Stewart Stevenson: In order to justify your covered. Of course, that is ante hoc; post hoc, the remarks, can you give examples of where we have process by which a bill gains royal assent also failed in the 60-odd bills that we have passed? involves review for ECHR compliance. What gap are you pointing us to and have you in mind Lynn Welsh: I do not know where you might examples that show that existing processes have have failed, but it is true that all of us can always not delivered in the 60-odd bills that Parliament do better. I agree with what Muriel Robison said has so far passed. about having an independent voice. Considering human rights issues is only part of the Muriel Robison: There will be value in a Parliament’s job—having someone independent commissioner contributing to consideration of from the outside to consider such issues is always legislation because of their knowledge, expertise useful. The Disability Rights Commission already and overview of human rights, the convention and contributes to formulation of policies and so on, and because of their knowledge of what is comments on issues that Parliament is happening on the ground in Scotland. Perhaps a considering. The Scottish commissioner for human commissioner would be close to what is rights could do the same in a valuable way. happening on the ground in Scotland in a way that people in the Parliament are not. An external, Stewart Stevenson: Are you suggesting that independent and objective body that considers the elected members of the Parliament do not legislation will provide additional value. I do not have an independent voice? know whether my colleagues have particular Lynn Welsh: I am sure that you have an examples to give in that context. independent voice, but I am also sure that you do Stewart Stevenson: I would like to bottom out not have absolute expertise in human rights. It what you have said. It appeared that you were may be useful to have an outside body that making a point about processes, but you now combines independence and expertise. appear to be suggesting that there is a role for the Stewart Stevenson: I am prepared to accept commissioner in influencing formulation of policy— the thesis but I cannot get my hands on examples in other words, what will go into bills—rather than of where a commissioner would make a in simply auditing whether a bill is compliant with difference. That is my dilemma and that is why I ECHR, which appeared to be what you were am being fairly robust in challenging what you say. initially talking about. Will you clarify whether the commissioner should have a role in one of those Kathleen Marshall: In my office, we consider areas or in both areas? What exactly should their the reactive agenda and the proactive agenda. role be? The reactive agenda involves doing a kind of audit of what comes from the Executive or goes through Muriel Robison: I would have thought that they the Parliament, to assess whether it complies with should have a role in both areas. My written people’s rights. We are developing a children’s submission gives examples of what the rights impact assessment, which we have used on commissioner’s role could involve, but there would a couple of bills so far. I am not sure of the extent be value in their providing input to policy and in to which that kind of detailed impact assessment is considering the detail of proposed legislation as it already done for rights under the ECHR; it may be goes through Parliament. that a commissioner could give a fuller and more informed assessment. Stewart Stevenson: Are you not content with the existing audit processes, which involve the However, there is also a proactive agenda. One Presiding Officer’s office, scrutiny by members in of the basic functions of the Scottish commissioner committees and in the chamber, and scrutiny in for human rights will be to promote respect for the royal assent process? human rights, and one thing that we do is to look for gaps in a bill. An example would be our work Muriel Robison: I simply think that having an on the Prohibition of Female Genital Mutilation additional objective and independent view has a (Scotland) Bill. What was in that bill was fair value. enough and was consistent with human rights, but

65 †175 2477 14 DECEMBER 2005 2478

we examined it and said, “There’s something The Convener: Let us move on to another missing here—the protective aspect. The bill has issue. no mechanisms for protecting children.” Therefore, Marlyn Glen (North East Scotland) (Lab): I we facilitated a discussion and made some want to ask about the remit of the commissioner recommendations that were taken on board. It was and the commissioner’s relationships with other about adding to what had been done and having a bodies. My question is for the witnesses from the fuller debate. EOC and the DRC. The Convener: Those are important points. I am convinced by what you say about awareness Some international commissions have raising and about taking an overview. However— responsibilities for both human rights issues and and I do not want to misinterpret what you have equalities issues, as will the proposed GB said—we, as elected members, think that we do commission. However, devolution means that the an okay job of scrutiny. We are required by law to situation in Scotland is different; the Scottish scrutinise each bill that goes through the commissioner will be purely a human rights Parliament. Each bill will have input from the Equal commissioner. Will that be problematic? Opportunities Committee. We are expected to take Muriel Robison: The Equal Opportunities an overview, and we test the Executive. For each Commission’s formal position is that there should bill we ask, “Is this ECHR compliant?” We have be separate equality and human rights passed more than 60 bills and, to my knowledge, commissions for Britain and the devolved none of them has been struck down. It is important Administrations. Although there is to be a to set the context for your arguments. combined commission in Britain, we take the view I think that you are saying that a human rights that the ideal would be two separate commissions commissioner would be another voice. However, partly because, in this country, the starting point the part of your argument that is not very has been discrimination in employment. The convincing is the part that says that the Human Rights Act 1998 is relatively new. We feel commissioner will provide an overview. Can you that it would be valuable to have a body with a say where the parliamentary process is failing? specific focus on human rights and the 1998 act in order to build up understanding, knowledge and Lynn Welsh: There is a difference between culture before the two organisations come legislation that is only compliant and legislation together. Countries in which the two commissions that promotes human rights issues. The different have come together, such as New Zealand, have commissions have added value— a different historical background, which has led to The Convener: I have to press you on that: the two roles being combined. what issues would a human rights commissioner tackle in the first five years? Lynn Welsh: That is not the view of the Disability Rights Commission. For as long as we Lynn Welsh: If we are talking about the have been in existence, we have lobbied hard for commissioner taking an overview of the work of the DRC to have rights in relation to human rights the Parliament, I suppose that that would depend and disability, as we consider that important. That on the Parliament’s work. has not yet happened, but it will happen, to an The Convener: So it would be only extent, in the new body. There is added value in parliamentary work. having a single UK equality body with some Lynn Welsh: The commissioner would examine human rights powers and a separate Scottish your work and, I would hope, assist you. body that can work with it. The two could work together successfully if the gaps in the present The Convener: You have said that there should legislation were sorted out. That would put both be awareness raising and that an overview should bodies in a better position to work out their be taken, and I can understand why you are individual working arrangements. arguing for additional powers to be included in the bill. Which areas beyond the work of the Marlyn Glen: It is difficult to see how the new Parliament do you think are lacking? Would a body is going to work because so much is human rights commissioner draw up a list of three changing at the moment. Do you think that, to or four areas in which work was required? ensure effective co-operation between the Scottish commissioner and the GB commission, co- Muriel Robison: That question would be better operation should be made a duty in the bill? directed at an organisation such as the Scottish Human Rights Centre, which is considering the Lynn Welsh: It is not essential to do that. In overview. My organisation has a relatively narrow Scotland, we have an excellent history of co- remit and, frankly, I admit that I have not given a operation. For years, the equalities co-ordinating lot of thought to the question that you ask; some group has been drawing together all the equalities organisations will have given it much more strands to work together effectively. It would do no thought. harm to create such a duty, but I am fairly certain

66 †176 2479 14 DECEMBER 2005 2480 that the bodies would co-operate effectively I envisage that I would work closely with the without being demanded to do so. commissioner for human rights. I envisage that, on general human rights issues that involve children Muriel Robison: One of our concerns is the gap and young people as well as other groups in between the powers of the two bodies. The society, we would talk about who would take the Equality Bill states that the commission for equality lead on specific parts of the issue and that it would and human rights will not be able to take action in depend partly on how it fitted into other work. I relation to human rights in Scotland without the have an added role, in that the 2003 act puts a consent of the Scottish human rights huge emphasis on involving children and young commissioner. I am concerned that, given the fact people in my work, which is consistent with the that the CEHR will have more powers than the United Nations Convention on the Rights of the Scottish commissioner, the Scottish commissioner Child. There is a sense in which, if a general body might well put pressure on the GB commission to took on some of the reactive and auditing work, it do the work that they do not have the power to do. would—as long as I was happy that it was done in That will make for an awkward relationship. The a way that respected the UN Convention on the problem will not be insurmountable but, as things Rights of the Child—leave me more free to do the stand, it will be quite an odd relationship. proactive work, which involves getting matters on Lynn Welsh: It would be better to have two the agenda. equal bodies than to insist that two unequal bodies somehow co-operate with each other. There is a balance to be struck. There is some area of overlap but, because of the way in which Muriel Robison: One of the interesting the bill and the Commissioner for Children and differences between the two bodies is that it is Young People (Scotland) Act 2003 are written, proposed that the Scottish commissioner will be they fill some respective gaps. I have already accountable to Parliament, whereas the human mentioned the investigative power. My rights element of the commission for equality and investigative remit is much wider than the one that human rights will be accountable to Government. is set out in the bill, because it is about whether, There is a difference in the status of the bodies, how and to what extent a service provider which might play out differently in practice. respects the rights, interests and views of children Marlyn Glen: So, the relationship will be and young people; it is not restricted to public problematic and we will have to wait and see how authorities. the whole thing works out, which is worrying. My remit and that of the human rights I have a question specifically for Kathleen commissioner are like two intersecting circles: Marshall on something that has been touched on there is an area of overlap in the middle, but there already. Do you see any points of overlap between are also big discrete areas. The overlap is a the functions of the proposed commissioner and natural one on which we would have to work your work? together. It reflects the fact that children are human too but that, as children, they have a special characteristic of which special account 11:00 must be taken. Kathleen Marshall: There will be points of overlap given the fact that my role, as set out in Marlyn Glen: Do you not envisage that the statute, is to promote and safeguard the rights of overlap will be a difficulty? Will it not have to be children and young people. Those are not sorted out formally? specified. The explanatory notes to the Kathleen Marshall: I do not. We have already Commissioner for Children and Young People been through that discussion with the children’s (Scotland) Act 2003 state that my remit is not commissioners for the different jurisdictions of the limited to the UN Convention on the Rights of the UK. There have been debates about how the Child, but includes other human rights children’s commissioner for England interacts with instruments, although I must have special regard us, because there is an overlap in some areas. to the UN Convention on the Rights of the Child. We have discussed that and are talking about Similarly, the bill talks about other international having a memorandum of understanding. It makes treaties on human rights in a general way but sense to have such a memorandum but, states that the commissioner should have special ultimately, the issue will come down to personal regard to the European convention on human relationships and whether we can work closely rights. The human rights commissioner and I will with each other. We can have all the memoranda obviously have overlapping areas of responsibility, in the world, but if people are determined to be but we will also bring different emphases. entrenched in their views, they will not work. However, that is natural, given that there is a An overlap is not avoidable. We can see that whole web of international and national law. The even in attempts to draw a clear line between question is what one’s point of entry to it is. devolved and reserved issues. We get into grey 67 †177 2481 14 DECEMBER 2005 2482

areas, because human life is more complex than human nature. If we approach the matter in good such distinctions. It is the same with the interface faith, things should be all right. between children’s rights and general human Margaret Mitchell (Central Scotland) (Con): I rights; there will always be areas that we will not want to clarify the relationship between the human be able to define as one or the other and which we rights commissioner and the courts. You said that will have to work through in good will. there is a case for the commissioner being able to Marlyn Glen: You obviously think that the bill bring a test case because they will have an will add value. overview. What do you think of the commonly held view that it is for the courts to enforce human Kathleen Marshall: I think that it will. In some rights? instances, there is also a point to making it clear that children are entitled to human rights. People Muriel Robison: I do not think that the human sometimes think that the European convention on rights commissioner will usurp the role of the human rights is an adults and parents charter and courts. If the commissioner has the necessary that the UN convention is for children; they think powers, they will identify the most important that they are always in conflict. There is a point in cases. However, ultimately, it will be for the courts showing that children are human too. Sometimes it to decide whether human rights have been is better to embrace them in the wider debate and breached. The commissioner will have a strategic sometimes it is better to have a specific voice; it overview of which cases are the most important depends on what the issue at stake is. The human and will be able to have those cases tested by the rights commissioner and I would discuss that as courts. However, the courts are the ultimate we went along. arbiters and they will decide whether human rights have been breached. The Convener: I do not disagree with what you have said. It will depend on the relationship Margaret Mitchell: The bill proposes that the between you and the human rights commissioner. commissioner will have the power to intervene However, might there be the need for one with the leave of the courts. I take it that you do commissioner to take a lead on some areas? I am not think that we should go further and give the thinking about young people in detention, for commissioner the power to intervene in civil instance. proceedings without the leave of the courts. Kathleen Marshall: It is not possible to specify Muriel Robison: No. I understand that the that in advance, because it would depend on the commission down south will be required to have issues. We are embarking on a project on young the leave of the court to intervene and we accept people in detention. One of the aspects that we that the Scottish commissioner will be expected to will examine is how their interests as children are have the leave of the court too. The experience of respected and how their views are taken into the commissions down south is that, increasingly, account. Both of those points will be examined in they are intervening and the courts are accepting the context of the UN Convention on the Rights of the value of those interventions. In a recent human the Child. There might be broader issues on rights decision by the House of Lords, one of the detention with which the human rights judges, Baroness Hale, was looking for someone commissioner would deal and in which it might be who represents the rights of children to intervene. appropriate to include young people. We would Increasingly, the courts see the value of have to consider that as the issues arose and see interventions by expert organisations. what was on the agenda. Margaret Mitchell: I have a question for At the moment, I am proactive. I do not just Kathleen Marshall. Section 11 contains the power respond to things that come from the Parliament to intervene except in children’s hearings. Do you or the Executive. I take account of other concerns have a view on that? that are expressed, given that the United Nations Kathleen Marshall: I do not understand why Convention on the Rights of the Child defines children’s hearings have been excepted. Criminal children as being up to the age of 18. I want to proceedings are excepted, but children’s hearings continue to have the freedom to do that. If it was are civil in nature, although some of them may decided that the human rights commissioner was proceed on offence grounds. The exception needs the lead on detention and I had to go and get to be explained rather than being something that I permission to do something, I would not be happy should have to justify. In recent years, it has about that. The Convention on the Rights of the increasingly been recognised that human rights Child gives added value because it contains issues arise in children’s hearings, and there is an additional rights with respect to the particular additional power to appoint legal representatives status and vulnerability of children and young for children. Someone will have to justify the people. I am confident that we can work out the exclusion of children’s hearings from the power to overlaps as we go. I am sure that other interfaces intervene. Unless I hear an argument that explains will crop up that no one has thought about. That is 68 †178 2483 14 DECEMBER 2005 2484 the exclusion, my basis is that they should be Muriel Robison: The Scottish commissioner will included. not be able to do that. There seems to be no scope for the commissioner to investigate whether Margaret Mitchell: That is a fair comment. there has been an unlawful act or not—unless, The Convener: I have a question on the perhaps, it is in relation to torture. extended powers of the commissioner. Earlier, you The Convener: Section 9 contains something said that the commissioner should be able to about “findings” as a result of an inquiry. You have declare that something contravenes the ECHR or spoken about extended powers for the human another convention. How would that be done? rights commissioner. Is your view that the bill Muriel Robison: I do not remember saying that. should give the human rights commissioner the power to declare, at the end of an investigation, The Convener: I think that Kathleen Marshall that something has been in contravention of the was concerned that the commissioner would not ECHR or another convention? have the power to declare that something might be contrary to ECHR. Did I pick you up wrongly? Kathleen Marshall: My reading of section 9 is that the “findings” would be whether the Kathleen Marshall: I am not sure where that commissioner thought that there had been a comes from either. breach. However, there is no power to enforce. A If I held an investigation, I would put declaratory power basically enables a person to recommendations and conclusions to Parliament say that their finding is that there has been a at the end of it. In most cases, apart from breach. However, as in my case, that does not excepted cases, I think that the human rights lead to enforcement. The wording is different—as I commissioner would do so as well. We would recall, the act that created my post talks about declare our determinations. In my case, although conclusions and recommendations rather than what has happened might have breached findings. children’s rights, I do not have any enforcement Whether it is called a declaratory power is a powers. I cannot see any objection to the human question of terminology; the important thing is rights commissioner having a declaratory power, whether there are consequences. In my case, the and I am not aware that such a power has been matter goes to Parliament and it is then up to excluded. Parliament to decide what to do. I understand that The Convener: Should the commissioner have it will be the same for the Scottish human rights a declaratory power, or is that a matter for the commissioner. The power is not backed up by the courts? enforcement powers that the CEHR has. Lynn Welsh: The Scottish commissioner will be Kathleen Marshall: If it is a declaratory power limited in carrying out investigations or inquiries. without a power of enforcement, I cannot see any The commissioner cannot investigate an individual objection. I think that that is what I have. After body unless it is the only body that carries out a holding an investigation, I can present my function. It will be quite difficult for the conclusions and say that children’s rights have commissioner to say that there has been an been breached. It would then be up to Parliament unlawful act because, in most of the inquiries that to decide what to do. Parliament would no doubt it carries out, it will be looking at too broad a seek other views before deciding whether picture. something had to be done to remedy the breach. Mike Pringle (Edinburgh South) (LD): In The Convener: The children’s commissioner evidence, people have referred to “commission” has that power at the moment. and “commissioner”. London is setting up a body Kathleen Marshall: Yes—at the end of an that will have a commission and that will have an investigation. I imagine that the bill gives the same office in Glasgow. Has the Scottish Commissioner power to the human rights commissioner and that, for Human Rights Bill got it right, or should there at the end of an inquiry, the commissioner would be a commission rather than a commissioner? be able to report on whether there had been a Lynn Welsh: I am afraid that I am not absolutely breach. It would then be up to Parliament to clear on why there is a difference. decide what to do, and it might want to ask further Muriel Robison: I assume that it has something questions at that point or seek further views. to do with accountability to Parliament, but I do not Lynn Welsh: The CEHR—the British body, if have a clear understanding of why the two things you like—will be able to carry out investigations are different. and say that an act has been unlawful. It will then be able to serve notices in respect of that act. 11:15 However, the Scottish commissioner certainly will not have that power. The Convener: I can clarify the matter. Apparently, the difference is the fact that we have 69 †179 2485 14 DECEMBER 2005 2486

a commissioner and two deputies who act for the negotiations for leases, questions were asked commissioner rather than a group of about the capacity in which we were negotiating. commissioners with independent commissioning The question is unresolved. I wrote to the powers. Scottish Parliamentary Corporate Body about it Lynn Welsh: We know what the difference is, and about the implications for liability and but we do not know why there is a difference. indemnity. The answer that I received was that it was up to me to take personal advice on the Mike Pringle: I question whether the bill has got matter. Therefore, a technical question lingers it right. Should we have a commissioner and, about my legal status. I have, informally, asked possibly, two deputy commissioners, or should we various legal academics, who are well clued up, have a commission—a group—to address the but I have received no conclusive answer. issues? Mr McFee: That is surprising. Kathleen Marshall: One of the reasons for having a commissioner instead of a commission Kathleen Marshall: It is a difficult question, but that was given during the work that led to the what is our legal status? We have been asked creation of my post is the fact that a commissioner questions when entering into contracts and setting can be more flexible and dynamic and does not up bank accounts. What is this person? What is always have to work by committee. The counter- this office holder? If I enter into a contract and get argument is that different interests can be sued, am I sued as an individual? Do I employ represented on a commission. people as a corporate person or as an individual? What is my liability? There are practical There are voices for different interests and we implications. A company that is limited by want an overview. With a commission that has guarantee, as most charities are, would have some interests represented on it and not others, professional indemnity insurance for its trustees. there is a question of who is in and who is out. Is it We do not have anything like that. There is an not better to have one person who has an unresolved technical issue. I would not expect the overview of human rights, with deputes who also committee to deal with it, but somebody must have an overview? If we created a commission address the matter and tell us what our status is in with a number of people on it, we would have to comparison with the legal status of commissioners ask whether all the different interests were in other jurisdictions. represented. A judgment must be made about how big we are willing to make the commission, the Marlyn Glen: That is a question that we can ask context and so on. That is a matter of judgment before we set up something else along the same rather than something to which there is a clear-cut lines. answer. Mr McFee: I wonder why the question was not Marlyn Glen: I have a question for Kathleen asked before. Marshall about the legal status of the Kathleen Marshall: I knew better than to ask it. commissioner. In paragraph 3.5 of your written submission, you refer to the problems associated Mr McFee: Everything is fine in hindsight. with defining your legal status. Will you elaborate on what those problems are and suggest how they Let us return to the power to carry out inquiries. could be avoided in the creation of the new Earlier, I gave the example of housing commissioner? departments. The commissioner would not be able to inquire into those unless they had the Kathleen Marshall: The problem is a technical, thumbscrews out. However, people do not hang legal one—as a lawyer, I picked it up immediately. about in housing departments to get tortured—that I was going to ask about it at my interview but I is more likely to happen in a place of detention. I decided that it was too complicated. understand that the bill will give the commissioner the power to enter premises but that they will be Someone can have responsibilities as an able to insist on exercising that power only if they individual or as a limited company, in which case give 14 days’ notice. If people are detained— they have corporate status. In other parts of the legally or otherwise—in a place where torture is UK, there is a specific legal status called being conducted, what is the prospect of the corporation sole, whereby an individual can have evidence of torture disappearing in the 14 days of corporate status. Implications arise from the fact notice that the commissioner must give? What is that, as the legal person, the individual holds the the prospect of any organisation or establishment moneys and is liable. There are issues about the that performs torture allowing the commissioner to interface of personal liability and organisational enter as soon as they appear at the door? liability. In the legislation that set up my post and the posts of the other commissioners, our legal Kathleen Marshall: I agree completely. I do not status is not clear. There are issues about whether know why 14 days’ notice is specified. The power we can enter into contracts, and in the to enter unannounced should be available. As far 70 †180 2487 14 DECEMBER 2005 2488 as I can see, the appeals procedure in the bill is underlined by the Paris principles, which are could delay entry even further. referred to throughout the SPICe briefing on the bill and which say that it is necessary to ensure, Lynn Welsh: I do not think that the Disability for example, that financial controls are not so rigid Rights Commission has an official view on the or extreme as to undermine the independence of a matter but, as an individual, I agree that 14 days is body that has been established as a national an incredibly long time. human rights institution. Mr McFee: Will you hazard a guess at why the In some ways, I wonder why I should even talk provision is in the bill? about the appropriateness of what is proposed for Kathleen Marshall: You would have to ask the the human rights commissioner, because the drafters of the bill that—I presume that they got status of the debate is open to question. I was the provision from somewhere. given the clear message recently that the discussions that preceded the passing of the bill Mr McFee: We have attempted to do that. that created my office and the financial Kathleen Marshall: I do not understand the memorandum to the bill, which the Finance provision. By the way, I am the only children’s Committee and Parliament discussed, should not commissioner in the UK who has no power of be regarded as a guide to what Parliament entry—the Children Act 2004 recently gave the expects. As commissioners, we have been children’s commissioner for Wales that power. I do established in a context in which we are not quite not recall anything like a 14-day notice period in sure what guidance exists and what the that act, but I cannot say that for definite. It might parameters are. be useful to look at other legislation on announced The debate about accountability and and unannounced visits, because the other independence has not been fully worked through. commissioners are similar in that they are more Perhaps people are afraid to give guidance or set watchdogs than inspectorates. On the sheer parameters in case that undermines the practicality, it does not seem helpful that the commissioner’s independence, but if we appear to commissioner should have to give 14 days’ notice overstep the mark, we are told that we have made of their intention to enter premises to look for a mistake. I am not sure what we are supposed to evidence of torture. look at. When the post of the new commissioner Stewart Stevenson: My questions on money has been set up and the new commissioner is neatly segue from what we have discussed. To about to establish their office, I am not sure what give context, I will quote paragraph 116 of the guidance they will have on their available budget, Finance Committee’s report on next year’s budget, staff numbers and so on. which was published at 8 o’clock this morning. It The debate about budgetary control, says: accountability and independence has to be “The Committee … recommends that there should be a entered into in an objective way with all the review of the powers of direction in relation to the various commissioners and that should inform whatever parliamentary appointed commissioners and ombudsman happens with the human rights commissioner. in the legislation which set them up. On the assumption that there is a gap in the legislation with regard to budgetary Rather than having the issue arise in the context control, then the necessary steps should be taken to of particular budgets, we need to sit down and strengthen the budgetary powers of the SPCB in relation to say, “How do we get the right balance between the bodies it funds.” accountability and independence?” That is central That opens up the question whether the funding to the role. I do not have an answer, but the streams that have been discussed for the question needs to be asked. commissioner are likely to be adequate to allow The question whether the £1 million that is him or her to fulfil the powers in the bill. As the mentioned is adequate is partly related to the witnesses have broadly argued for more powers, functions that the office is expected to undertake. I what level of funding would be appropriate for do not know whether the other witnesses want to more powers? comment on that. Kathleen Marshall: You raise two questions: Stewart Stevenson: Before the others one is about assessing the adequacy of function comment, I wonder whether I could attempt to nail and the other is about budgetary control, which is you down. Do you think that the proper approach discussed in the Finance Committee’s report, is for the Parliament to say, “You have £2 million which I too obtained at 8 o’clock this morning. this year; do what you can with that money and be I was puzzled and taken aback by the issues accountable for what you have done,” or should that were raised to do with my budget recently. I expenditure be driven by need under a system in fully acknowledge that the balance between which, in essence, there is a blank cheque, or the accountability and independence is delicate. That commissioner has to come back and talk to us if they have spent, say, £5 million? Which approach 71 †181 2489 14 DECEMBER 2005 2490

should we take? Ultimately, MSPs live in a climate 11:30 in which we have to account for every paper clip, Muriel Robison: When I researched the issue so naturally we are cautious about signing blank of the £1 million budget in producing my written cheques for others. response, I considered the budget for EOC Kathleen Marshall: I used the phrase “blank Scotland. Our promotional role is the only part of cheque” to the Finance Committee. I do not think our work that is funded in Scotland; the that anyone who draws on public funds should enforcement role is funded from the GB body. The have a blank cheque. Some of the issues apply budget for that promotional role is almost £1 more to my role than to the role of the human million, which gives me a sense that, even with the rights commissioner. Some of the ombudsmen limited powers in the bill, the £1 million budget have a more defined remit; although the roles of might not be enough, given that the the Scottish information commissioner and the commissioner’s remit would be broader than ours. Scottish public services ombudsman have certain Should the commissioner be given greater promotional aspects, they largely involve powers, the Equality Commission for Northern responding to complaints and appeals. Those are Ireland would be a good model, as it has a quantifiable and it is possible to have some idea of promotional and an enforcement role. Particular the trajectory. issues arise in Northern Ireland, but the body has a £1.3 million budget for 1.3 million people, so that If one has a promotional role, as I do and the is a penny each. human rights commissioner will do, there is a much wider spectrum of things that one can do. At Stewart Stevenson: It is a pound each. one point, people were talking about the Muriel Robison: I beg your pardon—I cannot commissioner for children and young people do sums. having regional offices, but I could not possibly do that with the budget that I have at present. It is a Stewart Stevenson: I hope that you do not do question of setting some parameters and having the accounts for your organisation. some idea of people’s expectations. If there are Muriel Robison: Precisely. broad parameters at the beginning so that one knows what is expected, one can draw up a The Convener: I should say that Mr Stevenson budget, on a needs basis, within those is a former computer manager for a bank. parameters. As time goes on, functions develop, Muriel Robison: When I am asked to get into one sees what the needs are, and one consults— accounts at the EOC, I am told to do bottom-up my role has a huge consultative element—so one budgeting, which means working out a strategic might have other ideas. plan and then costing it. That is one way of I do not expect to be able to state what funding I working, but I am not sure that it works in practice, need to perform my role with no limits and without because we always have our eye on the figures in challenge. There is obviously an element of the previous year’s budget and we work to them. practicality there, but one has to have some Stewart Stevenson: I want to nail you down on parameters at the beginning when things are still the issue. You say that you are not sure that that fluid and one is working out the best way to do the approach works, but what would work? Based on job. I am talking from my point of view. We need a your experience, how should we approach the more objective debate that takes into account matter? things such as the Paris principles and the Parliament’s mechanisms so that we can arrive at Muriel Robison: The commissioner needs a some clearer guidance. I would certainly welcome specified overall budget, although I am not sure that and I am happy to be a part of that debate. I exactly how that would work. hope that when the post of human rights Stewart Stevenson: So we would give the commissioner is established, there will be a commissioner the money and say, “See what you clearer vision and clearer mutual expectations can do with it.” That is putting it crudely, but is that than there have been to date. your suggestion? Stewart Stevenson: What is the view of the Muriel Robison: Yes. I hope that the Scottish Equal Opportunities Commission? commissioner for human rights would be able to Muriel Robison: On that point? make the right kind of strategic decisions that achieve the best value for money for the Stewart Stevenson: What funding is needed on organisation. The Equal Opportunities the basis of the proposals in the bill? What would Commission has done an awful lot of work on a be needed on the basis of some other small amount of money, particularly in law proposition? Concisely, how best can we as enforcement, which is my area of work. We parliamentarians interact to enable and not to receive a lot less money than the other prejudice the commissioner’s independence? commissions but, because we work strategically, 72 †182 2491 14 DECEMBER 2005 2492 we have done a lot with it. The idea would work, Stewart Stevenson: May I express a personal as long as there was a limit on the amount and as opinion? I suspect that the SPCB fulfils the role in long as careful strategic thinking and prioritising the Parliament that management accountants do were done. The discipline of having a budget is a in a large company. In other words, it draws good one. together all the financial strands of its business and does not directly make policy. I suspect that Stewart Stevenson: What does the Disability colleagues who are on the SPCB would express Rights Commission think? the situation in those terms, and could only do it in Lynn Welsh: I agree. We find it difficult to say that way. exactly how much it costs to run our Scotland The Convener: Do you have any costings for a office, for the reasons that have been given: our medium-sized inquiry, or any figures at all? salaries are paid from elsewhere and our legal budget comes from elsewhere. We receive money Kathleen Marshall: There are so many different in Scotland only in relation to particular pieces of inquiry models. I have thought about costings. work that we do here. The amount approaches £1 When I chaired a statutory inquiry—the inquiry into million, so I do not think that £1 million is enough the abuse and protection of children in care that for the new commissioner. The use of our formal was set up by the City of Edinburgh Council—I investigation power—for example, we have carried looked for guidance but did not find much. What out investigations into health boards in England— little there was referred to different models. I know is expensive. I absolutely agree that the from my own experience that the model that one commissioner will have to have a budget figure. adopts, the time that the inquiry takes and the They will have to know the figure that they are personnel that are required will be related to the trying to work to when they consider their work issue. strategically; otherwise the budget will just grow One of the main reasons for having an like Topsy—there will be no end to it. investigation is to get answers and information. I Kathleen Marshall: That is what I thought I had. can envisage wanting to do something short and From what was anticipated in the financial snappy, but inquiries can be much more drawn memorandum to the Commissioner for Children out. In my evidence to the commissioner for and Young People (Scotland) Bill and the initial children inquiry, I gave the example of the Fife discussions with the SPCB, I thought that I had a inquiry, which was about the policies of the local set budget to work with. The sums that I have authority and was more complex. In cases such as proposed were within parameters that were set in the Orkney inquiry or the on-going Western Isles 2002. However, that has subsequently been case, individual rights are at stake, so there is a questioned. much more formal setting, with people having representation. A contradiction already exists in relation to the new commissioner. Paragraph 87 of the policy There are so many different models that it is not memorandum states: possible to have just one. One might adopt a “Accountability to the Scottish Parliament will involve the model and say, “These are the kinds of things that following: …the SCHR’s budget being determined by the we think we will inquire into or investigate, and this Scottish Parliamentary Corporate Body”. is how we will do it.” I have some ideas about how I would do that, but a particular case might not fit I cannot remember whether this was in written the mould. That is one of the issues. communication or in my debate with the Finance Committee, but it has emerged that the SPCB The Convener: I hear what you are saying, but sees its role as being not to justify or defend how would you guide us? commissioners’ budgets, but more to be a conduit Kathleen Marshall: In terms of the other to Parliament. funding issues, that may be a question for the What is the role of the SPCB? Is it to determine human rights commissioner rather than me. the budget? Does it have a role in justifying or However, I note that the decision of the children’s defending it? One reason why I asked to be heard commissioner for Wales to chair a formal inquiry by the Finance Committee is that if questions arise was questioned because it was thought that he about my budget and the SPCB does not see its would be partisan on the side of children and role as either to justify or to defend it, I want to be young people. Given that, I would have to get an in a position to defend it and ask questions about external chair. it. There is a muddy area around how budgets are I discussed with the SPCB having a budget that developed, how they are scrutinised and what I could draw on for particular investigations that leeway there is, and that has to be looked at. I would not be filtered in terms of policy but that would be happy to be part of that process so that would not be part of my core budget. As far as I everyone has clearer expectations. am aware, we have generally agreed that, but it was always expected that such investigations 73 †183 2493 14 DECEMBER 2005 2494

would be rare. I might not have even one inquiry in We believe that a case can be made for the course of a year, but the human rights accountability to be handled by a committee that commissioner might be expected to have more. It would be established along the lines of the might be possible for the commissioner to develop Scottish Commission for Public Audit to which a model. Audit Scotland is responsible. The main responsibilities of that commission are: to examine Three of us worked part-time on the Edinburgh Audit Scotland’s proposals for the use of inquiry that I chaired in 1998-99, and I think that it resources and expenditure and report on them to cost about £100,000 over the course of the year, the Parliament; to appoint a qualified person to but we were using the premises and staff of other audit the accounts of Audit Scotland; and to lay bodies. I think that the Orkney inquiry cost about before the Parliament and publish a copy of Audit £10 million, and the Fife inquiry cost about £5 Scotland’s accounts and the auditor’s reports on million. There are so many different models that I them. would have difficulty putting a figure on the costs. All I will say is that, from my point of view, I would We suggest that a similar body could be not try to do something like the Orkney inquiry, established to audit the various commissions and which, in the circumstances, was appropriately ombudspeople in Scotland. That would ensure judicial. However, I cannot speak for how the that accountability would be dealt with by a human rights commissioner will do it. committee that was familiar with how such bodies work. Such a new body would reconcile the need The Convener: That is helpful. I hear what you for independence with the need to hold the are saying about the models of inquiry. We need commissioners and ombudspeople accountable to to give some thought to your comment about the Parliament. whether there should also be a draw-down budget. I do not think that that took me two minutes. We have to draw this session to a close. I thank all three of you for your helpful evidence. You will The Convener: Thank you; you were true to appreciate that at stage 1 we have to push you your word. I like that. quite hard on some of the questions because we Mr McFee: You have had time to think about my have to report on the general principles of the bill. question, because I asked the last panel the same As elected members we always like to test the thing. It would be helpful if, when David Cobb issues. Even if all of us in this room agree on the answers, he would briefly outline the work of the need for a human rights commissioner in some Scottish Human Rights Centre. shape or form, we have to represent the view outside. It is the Asda test—we like to examine Leaving out for the moment whether there what it means to the person in the street. Thank should be a commission or a commissioner, I want you for your written and oral evidence. you to concentrate on the straightforward question of the need for a Scottish commissioner, the powers that that commissioner should have, and 11:41 the present proposals. You should also take into Meeting suspended. account what the elements of the protection and promotion of human rights should be. The 11:48 discussion would be more free-flowing if you could address all those issues at once. On resuming— David Cobb (Scottish Human Rights Centre): The Convener: I welcome our second panel: The Scottish Human Rights Centre is a voluntary Rosemary Burnett from Amnesty International NGO. It is primarily an advocacy group for human Scotland and David Cobb from the Scottish rights. In particular, it provides an advice service Human Rights Centre. Rosemary Burnett asked that is essentially for members of the public who whether she could make a short statement. I phone in. It also studies certain human rights- explained that we do not normally allow that, but related issues and provides training. Clearly, when as it will take only a couple of minutes, I have the commissioner takes office, one must ask what agreed to the request. SHRC’s role will be. However, that is a matter for Rosemary Burnett (Amnesty International another day. Scotland): Our statement is specifically about Despite the fact that it leaves us with a question accountability and independence, which the about our future, we welcome the bill. Our great committee discussed at its previous meeting. concern is that it will create a person whose focus Lines of financial accountability are a problem for is human rights. I do not need to go over what the the commissioners who are in post already. That previous witnesses from the commissions, may be due in part to the way in which the including Kathleen Marshall, said about that; we appointments were made over time. endorse it. The significant thing is that human rights issues may or may not arise in the 74 †184 2495 14 DECEMBER 2005 2496 operations of the commission for equality and someone making themselves visible, is how to human rights and may or may not be a priority fund the case. We do not as yet have a there. It is the other way round with the human tremendously developed bar or corps of lawyers rights commissioner—human rights are the who can act pro bono. Therefore, a person is priority. That could help to inform the other work dependent on the Scottish Legal Aid Board being that the commission for equality and human rights willing to support them. SLAB can find itself in an will do in Scotland. invidious position, as it also has budgets to manage and priorities to determine. With all the Also, another voice is required. As I am sure we professionalism in the world, it may have a will cover later, ultimately the courts will declare different view of the importance of what I might whether something is or is not a breach of human say is a significant human rights case. rights, but it is not always a straightforward matter to get the horse into that particular starting stall. Although I have the ability to go to court and sue That is why the commissioner should be able to in my own right without the support of SLAB, the consider individual cases and either to fund or to EOC or, in this case, the human rights take cases in his or her own right. For example, commissioner, that can be very difficult. Consider, everyone knows that there is no more vehement for example, recent developments on equal pay. I opponent of slopping out than HM chief inspector am sceptical whether those developments would of prisons, Andrew McLellan. Ultimately, his ability have occurred without the support that the EOC to have that opposition crystallised depends either provided to litigants to clarify the law on that on the Parliament’s willingness to address significant matter. slopping out as a primary issue, or the courts Mr McFee: Are you saying that the differences telling the Executive that it is a breach of human between the systems north and south of the rights that requires correction. From our point of border are purely about having resources to take view, it is significant that the commissioner will be the case to court? Or do the differences exist, able to be more involved in the legal process. particularly in relation to class actions, because A further point is that in Scotland, one’s ability to the terms in which a class action can be taken in get through the court door—or, as it is technically Scotland are far narrower than they are south of known, one’s title and interest to sue—is narrowly the border? Is it about finance only, or is it about defined. In the English High Court, groups such as finance plus process? Amnesty International, Greenpeace or Friends of David Cobb: It is both. the Earth frequently take actions. That does not happen here because the courts do not normally Mr McFee: The other issues that I asked you to regard such groups as having qualifying title and reflect on—you have dealt with part of the interest. question in respect of test cases and individual cases—were whether the balance is right between There is one further consideration. Some human protection and promotion in the bill and, if it is not rights issues raise very delicate personal matters right, how you would change it. What other powers about a person’s gender, sexuality, religious would you like the commissioner to have? persuasion or immigration status. Classically, people in those situations do not want to raise David Cobb: We would not want the promotion their heads above the parapet and put themselves aspect to disappear, but we would not be content in the firing line, so a firewall is sometimes to accept the position of the Scottish Executive important. that the role is about promotion and awareness raising. Those are laudable and desirable ends, I am sorry, but in the course of that lengthy but without a much more specific ability to inquire answer I have forgotten the other points that Mr into human rights abuses the commissioner will McFee wanted me to address. find it difficult to achieve substantive progress. Mr McFee: I will come back to those shortly. The terms of the inquiries that the commissioner Can I clarify that it is your contention that in can conduct are potentially troublesome. As Scotland it is much harder to take individual cases, someone who worked for a number of years in or even test cases, so there is a greater local government, I know that if the commissioner requirement for the Scottish commissioner to have knocked on the door and I heard what he or she that ability than there is south of the border, where wanted to investigate, I might well spend a lot of it is easier to take an individual case? time saying, “That is not within your terms of reference. Are you sure that this raises a human David Cobb: No. It is someone acting on rights issue?” Potentially, we could wind up in the somebody else’s behalf, or class actions, that are courts arguing about whether the commissioner more difficult to achieve in Scotland. If I, as an should be dealing with the issue at all. I want the individual, think that my human rights are being commissioner to be armed with much more violated, in theory I can go to court and say that in specific powers to look at individual cases, my own right. The practical difficulty, apart from 75 †185 2497 14 DECEMBER 2005 2498

because those are sometimes the symptom; it is achieve a judgment that ultimately gave Napier occasionally more difficult to address the issue £2,000 in compensation. The interim judgment from the other direction. required that he be moved within 72 hours from the conditions in which he was being kept. The Scottish Prison Service addressed the need to 12:00 budget for subsequent claims by allocating £28 Another issue is the 14-day notification that must million in 2003-04, £44 million in 2004-05 and so be given before places of detention are inspected. on. We cannot see a use for a provision that—again— has the potential to act as a significant fetter on To paraphrase Lyndon B Johnson, “When the powers of the commissioner. Ann Owers, Her you’ve got them by the wallet, the hearts and Majesty’s chief inspector of prisons for England minds follow.” SPS management are now running and Wales, reported recently on what she called around like headless chickens making sure that the fight-club mentality in a high-security prison. I the human rights of prisoners conform to the understand that she found that out only because legislation. You used that case as a key example she is able to conduct unannounced visits. In of what is at the core of what the commissioner common with other investigative agencies, the needs to do. What added value is there in having commissioner for human rights needs to be able to a commissioner who can address a problem that enter premises and on occasion, as we said in our appears, prima facie, to have been dealt with submission, to compel people to give evidence or entirely satisfactorily under the existing produce documents. The power would not be used processes? frequently; classically, people do not co-operate David Cobb: Everyone has heard of the Robert when they have something to hide or are nervous Napier case, which made it an easy example to about something. give. I used the example to illustrate that, despite The focus of the commissioner for human rights the fact that the chief inspector of prisons is should be more protective. We do not necessarily vehemently opposed to slopping out, he could not want the commissioner to be in the business of bring the practice to an end. As to what value is enforcement in the same way that the added, the Legal Aid Board funded Napier’s commissions are at present. As I said at the litigation. What would Napier have done if SLAB outset, we would rather see the commissioner had refused him legal aid? The human rights point having powers to go to court or intervene; that is would have remained and, as the courts have how human rights abuses and breaches are put found, the breach of human rights would have right. remained. We see the commissioner adding value in circumstances where there is an issue of The Convener: The Executive has told us that significant human rights merit and someone primary legislation would require to be amended, cannot get themselves into court by other means. because it is normally the victim who sues. Obviously, the commissioner for human rights is Stewart Stevenson: For example? not the victim. How would we get round that? David Cobb: There are various issues that one David Cobb: Ultimately, of course, an act of the can consider. I am fairly familiar with the new United Kingdom Parliament would be required to Mental Health (Care and Treatment) (Scotland) change the Scotland Act 1998 or the Human Act 2003. Earlier, you raised the issue of the Rights Act 1998 as necessary. As I understand commission having some sort of oversight of the it—I am sure that Muriel Robison could have been law. I am in no way querying the professionalism more specific on the subject—the Government has of the advice that members got about whether the got around the problem for the UK commission for 2003 act was compliant with the European equality and human rights simply by saying that it convention on human rights, but such advice can can raise an action or a judicial review without only be an opinion; there are no absolutes in this being the victim. A legislative technique has been world. In any human rights issue, a key test is used in that case, albeit that Westminster was whether an act is reasonable and proportionate, required to act to remove the fetter—acts of and there will be challenges in relation to the 2003 Parliament are changed all the time. act. The Convener: Is your question on that point, Feeding regimes in hospitals, the closure of rural Stewart? hospitals, illegal migrants working for poor or no wages, some of the proposals on blood testing— Stewart Stevenson: If I may, convener, I want to challenge something that was said about The Convener: You mentioned the closure of slopping out, which David Cobb has made a rural hospitals, which surprises me. I am not flagship issue. Robert Napier raised a successful saying that it is right to close rural hospitals, but I legal challenge in 2001 against the Scottish Prison am interested in the route by which you would Service. Over £1 million was spent on legal aid to argue that point. Do you not have to refer back to 76 †186 2499 14 DECEMBER 2005 2500 a convention of some kind if you are going to well until now is that of reports to the United suggest that that would be a breach of human Nations human rights bodies. For example, rights? Kathleen Marshall will report on the UN Convention on the Rights of the Child and the David Cobb: I am putting forward theoretical human rights commissioner will report on the possibilities; I am not saying that all those issues Convention relating to the Status of Refugees. are necessarily challengeable, but that they could Previously, such reports have been done by civil be looked at in that way. The closure of rural servants in London, with advice from civil servants hospitals could be an issue under article 2— in Scotland. Human rights problems in Scotland, The Convener: That is what worries me. I am particularly slopping out, have not been reflected keen that the parameters of what counts as a adequately in those reports, as they have tended human rights issue should be fairly clear. Of to have an English slant. In 1994, the UN course, I know that there are conventions that I Committee against Torture recommended that know nothing of that we, perhaps, should make slopping out be done away with. In England, that ourselves familiar with in the course of this bill. was done by 1996 but, in Scotland, it still will not David Cobb: You can track back all the have been done in 2006. If we had had a human examples that I have given to articles in the rights commissioner in Scotland in 1994, the issue European convention on human rights. Because would have been given much more importance those articles are broadly expressed, we must and something would have been done about it, have an eye to how they manifest themselves in which would have saved the Scottish Legal Aid the real world. Board £2 million. That is a good example of how a human rights commissioner may save money that If we confine ourselves to the concrete example is spent through the Scottish Legal Aid Board. of the Mental Health (Care and Treatment) (Scotland) Act 2003, as a practitioner in this area, I On the protection aspect, the power in the bill to can say that there will definitely be challenges at conduct inquiries is restrictive. It is interesting that some point in relation to whether compulsory the Commissioner for Children and Young People treatment orders, as imposed in some form, (Scotland) Act 2003 talks about service providers, violate the right to freedom and liberty. How that which gives much wider protection than will be will be tested is the issue. I am not simply picking provided under this bill, which mentions public examples out of thin air. Certain questions that authorities. For example, if the commissioner arise from the provisions of the ECHR might need wants to consider care homes for the elderly, they to be dealt with at some stage. will be able to consider care homes that are funded through public authorities, but not privately Mr McFee: We have asked a number of people funded care homes. Similarly, the commissioner for such examples and you are the first person will not be able to consider privately funded that has come up with any. I realise that you are educational establishments. That considerable not advocating anything one way or the other, but gap in the provision would be filled if the words it is useful to have the examples because, as a “public authorities” in paragraphs (a) to (c) of Parliament, we have signed up to the ECHR. section 5(1) were substituted by the phrase I apologise to Rosemary Burnett for going “Scottish service providers”. As Kathleen Marshall through the whole section without referring back to said, the phrase “public authorities” is probably her and invite her to put her views on the record. used because of the connection to convention Rosemary Burnett: You asked about the rights, but the Scottish commissioner could balance between the promotion and the protection investigate matters in relation to other rights. of human rights. We believe that the bill’s As has been mentioned, big gaps exist between provisions for the promotion of human rights are the proposed powers for the commission for fine, but that the provisions for the protection of equality and human rights that is to be set up for human rights are inadequate. Britain and the proposed powers of the Scottish In terms of the promotion of human rights in the commissioner. For example, the CEHR will have advice to Parliament, which you discussed earlier, powers to carry out inquiries relating to any human I would point out that members of the Scottish rights issue as well as investigations where any Parliament have come to me for advice on their unlawful act is suspected. The CEHR will be able members’ bills because it is not easy for individual to inquire into any matter that relates to its general MSPs to get advice on human rights issues from duty and into any relevant body and it will be able the Scottish Parliament information centre and so to investigate particular cases in which a breach of on. It would be useful if members of the Scottish human rights is suspected, while the Scottish Parliament could get such advice from a specialist commissioner will not be able to do so. As has human rights lawyer. been said, the CEHR will be able to find that the Human Rights Act 1998 has been breached and, if Another area relating to the promotion of human necessary, take judicial review proceedings rights that is important and has not been tackled 77 †187 2501 14 DECEMBER 2005 2502

against the authority that is involved, but the human rights and a Scottish commissioner for Scottish commissioner will not be able to do that. human rights, it will be incredibly frustrating if The proposed powers for the Scottish something falls down the gap between them. commissioner are gravely lacking. The post would Difficulties might arise because the Equality Bill be much more effective if the commissioner was mentions only six specific equality strands. Those given the powers that the CEHR will have. are all important, but issues could also arise due to, for example, a person’s political persuasion, Another issue is that, if a court refuses to grant social origin or any other matter to do with status. the commissioner permission to intervene in a If the UK commission decides that it cannot deal case, the commissioner will have no right of with a particular matter, we need absolute clarity appeal. Many of the written submissions to the that the Scottish commissioner can step in. committee point out that some form of appeal Otherwise, in qualitative terms, people might have should be allowed to the House of Lords or the a second-class status because they will have no Privy Council. We also wonder why children’s one to whom they can turn. panels have been specifically excluded from the power to intervene. The commissioner for children The Convener: I want to pick up on that phrase, and young people does not have power to which people have chosen to use this morning. intervene in children’s panel proceedings, but Like many elected members in Scotland, I have human rights issues often arise in them. always been interested in defending human rights, so it concerns me that both panels of witnesses have suggested that people in Scotland could be 12:15 second-class citizens. Like other members round Mr McFee: I have a final question. As I the table, I have raised the issue of slopping out understand it, the bill will mean that, if someone in with the Executive. We have been hard on the Carlisle believes that their human rights have been Executive on that. We were not totally happy when abused by—to use the example given earlier—a funds that would have ended slopping out sooner local authority housing department, they will be were diverted, but the Executive made that able to ask the UK commission to take up their decision for reasons that were put in the public individual case. However, anyone who lives on the domain. other side of the Solway firth in Dumfries will not Does the panel not accept that the context in be able to do that unless they are also being Scotland should at least be taken into account? tortured. Is that defensible? Devolution has meant that we can do things Rosemary Burnett: No. As I have just said— differently. Arguably, we have challenged every bill that has gone through the Parliament on whether it Mr McFee: Would that be a breach of their complies with the ECHR. It is perhaps inevitable human rights? that differences of opinion will arise between the Rosemary Burnett: As I said, the authorities commissioner, the Parliament and, perhaps, the north and south of the border should have similar Scottish Human Rights Centre over whether powers, otherwise we will have two different something is a human rights issue. I am quite regimes. happy to accept that dynamic, but I am unhappy to accept a broad convention under which something Mr McFee: In other words, citizens of Scotland is deemed a breach of human rights just because whose human rights are abused will potentially not the commissioner for human rights declares it to have an organisation with the power to investigate be so, without giving the foundation for that their case and to intervene on their behalf by decision. taking a case to court for them. There is a danger that people who live in Dumfries rather than in Is it not important to consider the backdrop in Carlisle will be second-class citizens. Scotland? I accept that some gaps may exist that need to be filled, but we are not doing too badly, in Rosemary Burnett: One aspect of the bill that that we have a Parliament, trade unions and worries me—unless I have not understood it commissioners that challenge human rights correctly—is that if the Scottish Executive is able abuses. Is it not fair to say that we at least have to give a power to the Scottish commissioner for that context in Scotland? human rights but has not done so, the UK David Cobb: That context certainly exists. In commission for equality and human rights will not addition, the Scotland Act 1998 and the Human be able to intervene. I think that that is correct. Rights Act 1998 lay down requirements in relation Mr McFee: That is an interesting point. Does to the actions of the Scottish Executive and other David Cobb share that view? public bodies. That is a good background, but the important point is that the commissioner will be David Cobb: We are certainly concerned that able only to make declarations and issue reports. gaps might appear between the two bodies. If we have both a UK commission for equality and Ultimately, the two bodies that can make law are the Parliament and the courts, which can say 78 †188 2503 14 DECEMBER 2005 2504 whether something is unlawful. It is clear from Rosemary Burnett: And very splendid he is. reading Lord Bonomy’s judgment in the Napier Mr McFee: I thought that there might have been case that he was influenced by the fact that the an element of confusion during that exchange. Is it Scottish Executive had the money to end slopping the case that, regardless of the commissioner’s out and decided to spend it on something else. ability—or inability—to take action or make an That is a matter of political choice and, ultimately, inquiry on an individual’s behalf, the body that will it is for politicians to make such choices. determine whether there has been a breach in the The Convener: You argue that the existence of legislation will remain the court? a human rights commissioner might have brought about a change sooner. That is your view, but I Rosemary Burnett: Yes. could give another view: although we have not had Mr McFee: That is fine. I just wanted that on the a human rights commissioner, Stewart Stevenson, record. I and—many moons ago—Dorothy-Grace Elder raised such issues very vocally. If I used a search Mike Pringle: I have a question for David Cobb. engine to check, I would find numerous In your written submission, you make suggestions challenging questions that have been asked of the for changes to subsections (5) and (6) of section Executive. I would be prepared to accept that a 6. Will you explain a bit more about that? On page human rights commissioner is an important voice 2 of your submission, you say: that adds some weight to that scrutiny but—I am “Clause 6(5) should begin ‘Where it is necessary or only playing devil’s advocate—I have difficulty with appropriate’.” the suggestion that, if we had had a human rights You go on to say: commissioner, all those issues would have been resolved. I am not convinced about that. “Clause 6(6) should be less restrictively drafted.” Rosemary Burnett: If I were a member of the Will you add a bit of flesh to that? Scottish Parliament, I would think of the Scottish David Cobb: It is perhaps as much a lawyer’s human rights commissioner as somebody to point as anything else. The proposed amendment whom I could go for guidance and who would add to section 6(5) would simply make it clear from the weight to pronouncements that I might wish to beginning that, if the commissioner is conducting make in Parliament on a particular issue. How an inquiry, that is because he or she considers much more weight would a motion of yours carry if that it is necessary or appropriate to do so. It is not you were able to quote the Scottish human rights simply the case that the commissioner has commissioner’s view? My personal view is that it decided to go on a fishing exercise or anything like might have carried more weight with the Executive that; there is a reason for the inquiry. The if there had been a Scottish human rights proposed amendment would strengthen the commissioner to say that it was acting outwith the commissioner’s role. law by allowing slopping out to carry on. The Convener: I accept that. It would be helpful On section 6(6), Kathleen Marshall made the to agree on that, because I am concerned that the point that the United Kingdom Government has impression that the previous panel of witnesses signed up to a whole web of international gave was that we would almost rely on the conventions. To some extent, we would prefer the different commissioners to do all the work. I know focus to be less explicitly on rights under the that that is not what you are suggesting, but that is European convention on human rights, given that what is coming across. It is extremely important to there is that web of conventions, which includes, define the role of the commissioner—whatever importantly, as Kathleen Marshall pointed out, the powers they may have—as adding value. That is United Nations Convention on the Rights of the what I am trying to tease out. Child. We would prefer the wording in section 6(6) to be directed at all international treaty obligations, Rosemary Burnett: Since the cross-party group so that there is no question of people saying, on human rights was set up, it has been “These rights have priority over others.” As far as supportive of the idea of having a commissioner. human rights issues are concerned, we regard all Many MSPs who come to its meetings have said the conventions as having equal value, given that that they are looking forward to the Scottish the Government has considered it worth while to human rights commissioner being able to give sign up to them. Does that answer the question? them guidance when they are preparing or scrutinising a bill. None of you can be human Mike Pringle: Yes. rights experts as well as housing experts, Kathleen Marshall completely avoided the issue transport experts or all the other kinds of experts of how much the commissioner will cost. The that you are expected to be; you go to people for figure of £1 million has been stated, but is that guidance. amount adequate, or is it too much? Last week, I The Convener: Yes—we have our own adviser asked whether, in view of the fairly restricted who is an expert in human rights, too. 79 †189 2505 14 DECEMBER 2005 2506

amount of work that the commissioner will be able Rosemary Burnett: Yes. If the commissioner to do, there would be enough work for a full-time has the ability to conduct investigations and take job. Is £1 million adequate? Do you have any idea test cases, much more money would be needed. of the likely costs? Perhaps both David Cobb and Rosemary Burnett could answer those questions. 12:30 David Cobb: Our view is that £1 million is not Mike Pringle: And you think that he should have adequate. As I explained earlier, we deal with a lot that ability. of advice-related queries from the public and a lot of consultations and such like that emanate from Rosemary Burnett: The bill as drafted will the Executive or the Parliament. create a commissioner who is quite toothless. Rosemarie McIlwhan, our director, who Mike Pringle: Would you like to expand on that? unfortunately is not able to be here today, has Rosemary Burnett: As Brian Peddie said last examined the budget. She considers that, within week, as it stands the bill is about awareness the parameters in the bill, the budget undershoots raising and the promotion of human rights. It is not by about 50 per cent. On the basis of her about the protection of individual human rights: knowledge of the area, she thinks that a budget that is not seriously attempted in the bill. If the approaching £2 million would be appropriate. If the Scottish Parliament wants a bill to promote and commissioner was to have the wider role for which raise awareness of human rights, that is what you we argue, the costs would rise. Muriel Robison’s have in front of you. If you want a bill that will point about £5 million, which represents a pound protect the human rights of individuals in Scotland, per head—she eventually accepted that the cost you have to expand the bill to give the was a pound per head in Northern Ireland—is commissioner the powers that we have talked perhaps not a bad yardstick. about this afternoon. I will row back from that slightly. The SPICe David Cobb: As I said in my initial statement, briefing that committee members have in their awareness raising and the like are good enough papers says that, because the Northern Ireland ends in themselves, but given that we see the commission addresses individual grievances or court process as the essential hinge between issues, it has found itself overwhelmed. Of course, rights and reality, the commissioner needs the the recent history of that country is very different power to support and intervene. I am strongly in from ours, and I would not expect the wider favour of that. powers that we propose for the commissioner to generate quite the same amount of business. We I will correct one slightly odd thing that the might be looking at a figure of about £3.5 million to Executive witnesses said last week. £4 million. Even if the role is as proposed in the Mike Pringle: You are welcome to say as much bill, there will be work for the commissioner to do, as you like about what the Executive said last and he or she will need more than £1 million to do week if you think that it is wrong. it. David Cobb: An Executive witness was asked Rosemary Burnett: It is a matter of looking at whether any tribunals had been set up under the funding that other commissions around the devolved powers, but could not think of any. I point world have received and what they do with the to the mental health tribunal for Scotland and the money and considering how the discussion over additional support needs tribunals for Scotland, the balance of the role in Scotland plays out. It is which have been set up under devolved powers. like asking, “How long is a piece of string?” Before The important point in the case of the mental the commissioner is in post, it is hard to know how health tribunal for Scotland is that the Mental far £1 million will go. Welfare Commission for Scotland recently I will disagree with David Cobb and say that we released a letter—understandably, in the interests should have a regime under which the of avoiding duplication—saying that it was taking a commissioner starts with £1 million, and we can back seat in relation to detention, because the see what they can do with that. An application for tribunal now exists. That is good governance, but more funding could be made if the commissioner if the tribunal in an individual case or as a matter found that they were unable to achieve certain of practice goes off the rails in relation to human objectives without more money. rights, who—unless we go back into the courts— will intervene at an early stage? The Executive Mike Pringle: I presume that you would agree suggests that civil court actions should be used that if the commissioner is going to have the right and, in relation to those tribunals, if not others, that to intervene and to go to court and so on—all the there is no reason why that should not be the rights that I think that he should have; I am sure case. that you both agree with that—he will need more money.

80 †190 2507 14 DECEMBER 2005 2508

Mike Pringle: It is interesting that you raise that can apply to the court for leave to intervene, but point. I am awaiting a reply from the chair of the have either of the witnesses been refused such Scottish Committee of the Council on Tribunals on leave? that specific point because I do not think that the David Cobb: I am not aware that the Scottish situation is right. However, as was illustrated Human Rights Centre has ever tried to intervene earlier, I am not an expert in all these fields, in any action. The commissioner would not take therefore I have to go to an expert to ask the lightly the decision to get involved in civil litigation. question. We can presume that the commissioner would I have a question for Rosemary Burnett. I can turn up in court because a serious matter had probably anticipate her answer, but it would be arisen. Given that that would be the nice to have it on the record. Let us have a commissioner’s view, and given their expertise unanimous answer from our witnesses, because I and responsibility, the question is whether the have strong feelings about the matter. What is court should be able to say, “We do not want to your view on the human rights commissioner hear you. Go away.” having to give 14 days’ notice before they can Rosemary Burnett: The amicus curiae—that is, enter a prison? someone who intervenes in court proceedings— Rosemary Burnett: As has been said before, appears a lot under English law. I have been told the situation is not ideal. If somebody has that the Scottish equivalent is the McKenzie friend, something to hide, they can hide it within 14 days. but it is seldom used. It is not that the ability to It will be interesting to see how the European intervene does not exist but that it is seldom used. Committee for the Prevention of Torture and It is a question of the attitude of the Scottish Inhuman or Degrading Treatment or Punishment judiciary as opposed to that of the English functions. I am afraid that I do not know the judiciary. answer. However, that committee, which is a Margaret Mitchell: So it is almost a third-party committee of the Council of Europe, has the power right. However, you work on human rights issues, to inspect prisons, and my feeling is that it has to and we have heard that judges already invite ask permission of the relevant Government before people to comment on such issues. I have some doing so. difficulty: you have the power, but you have not Professor Jim Murdoch (Adviser): That is not used it. quite the case. The committee has to give notice, David Cobb: In fairness, the rules in England but it can give notice and visit thereafter, without are different from those in Scotland, and lawyers further delay. The power to visit in that way is who practise in this area recognise that difference. exercised when the committee feels that there is Muriel Robison was right to say that the EOC and an urgent need to carry out a visit. other commissions have made good use in recent Rosemary Burnett: Does it not have to specify years of the fairly liberal approach that has been the particular institution? We raised the point at a adopted in England. However, without the support meeting with Brian Peddie, who said that the of provisions in the bill, I would have a hard time if thinking behind the relevant provision in the bill I turned up and asked to intervene, unless I could was to allow the Scottish commissioner for human prove that I had a very direct interest in the rights to carry out inspections for that committee. It outcome. Generally, the courts in Scotland have seems odd that different regimes will operate. been reluctant to allow people to intervene. Theoretically, although the opportunity to intervene Mike Pringle: It seems bizarre that 14 days’ is available, it is very difficult to use it in practice notice is required before someone can find without legislative support. something out. It was suggested earlier that that notice would apply in torture cases. I hope that Margaret Mitchell: I hear what you are saying. torture is not, has not been and will not be an However, you have not tested that power; you issue in Scotland. However, there could be all have had it all these years, and you want more sorts of circumstances, and as you say, people from the bill. You say that you would intervene can hide things quickly. only if you had a real reason to—I would not want you to intervene in the court unless you had a The Convener: Do members have further really good reason to do so. questions on the functions of the commissioner, before we move on? David Cobb: A lay person’s definition and a judge’s definition of a really good reason are not Margaret Mitchell: We have explored necessarily the same. It is a question of a judge thoroughly the power of intervention, and we saying, “I allow you to become a party in this understand that the witnesses clearly feel that the litigation, but I cannot obviously see how its new commissioner should have that power, with or outcome will affect you.” We are back to the without the court’s leave. The Scottish Human question of access and of giving support to a Rights Centre’s submission states that anybody 81 †191 2509 14 DECEMBER 2005 2510

litigant who raises an issue that they might not be Scottish Police College, and we provide an advice able to deal with properly. service. For example, in a child custody case, there may Margaret Mitchell: So, you comment and you be a dispute over the religious persuasion in which advise the Executive, but although you have the the child is to be reared. The parents may see the power to intervene in order to make a difference to dispute as being limited to the question of where an individual’s life, you have not used it. the child will live, with the question of the religious David Cobb: Rosemary Burnett may have had persuasion within which the child will be brought some experience of trying to get Amnesty up being an incidental issue. Neither the parents International involved in such cases. Perhaps she nor the Scottish Legal Aid Board will direct is more aware of the practicalities. resources towards litigation if the question of religious persuasion is considered unimportant. Rosemary Burnett: No, I have not had any However, from the point of view of the child’s experience of that. Amnesty in Scotland consists human rights or those of the parents, the issue of two people. may be important. Margaret Mitchell: That is my difficulty. If I, as a private person, were to go to court and say, “This case raises human rights issues”, the David Cobb: The point is that the commissioner court is likely to say, “You are not the child’s will be able to do things that the Scottish Human parent. He is not living with you. Go away.” That is Rights Centre, as it is currently constituted, cannot a fairly clear rule of law. We can bash our heads do. off the brick wall as many times as we like, but the Margaret Mitchell: With respect, you cannot answer will be the same. However, such litigation say that. You have not tried. is needed if we are to achieve a step change in culture. David Cobb: Well, we could pretty well destroy our budget on one case, if we were to try to Margaret Mitchell: With respect, that is an litigate. assertion. The fact that you have not tested out the position, even with the powers that you have to The Convener: I suppose that we are trying to do so at present, is a huge stumbling block for me. tease out the robustness of the argument that we Why on earth are we passing legislation when you should instead spend £1 million on the Scottish have the power to litigate and yet you have not Human Rights Centre and Amnesty International, bothered to use it yet? split fairly between you. I am sure that you would love that. Both your organisations are playing the David Cobb: Let me say that, as a private kind of role that the commissioner will play and, individual in the example that I gave, I— with more resources, you could do more. It is important for us to tease out the argument for Margaret Mitchell: No. I am not talking about setting up a new organisation instead of extending you as an individual. You are representing the additional funding to existing bodies. Scottish Human Rights Centre, which has a specific remit and expertise in the field. I have more questions about the role of the commissioner. The judiciary in Scotland has dealt David Cobb: Yes, but expertise on which with cases under the ECHR since 1999. I can money needs to be spent. We are not a well- understand why, prior to that, an expert witness funded organisation. may have been required, but I am not convinced Margaret Mitchell: So, you are saying that you of the need now for an expert witness in human have not intervened in cases because you do not rights. I am not saying that I agree with every have the money to do so. decision that our judges take, but they have a fairly good and deep grasp of convention rights. David Cobb: Well, I cannot speak historically— David Cobb: Yes, they do, but that does not Margaret Mitchell: What do you do with your always make the situation any less difficult. time if you do not intervene in such cases? Especially in Scotland, the system of pleading is David Cobb: If we had the resources, I am sure very much directed at the particular—general that we would be carrying out the testing that you principles of law are applied to specific situations. suggest. What we have to do— That narrowing of the argument can mean that, even with the best will in the world, the solicitors Margaret Mitchell: What are your priorities for on either side and the judge do not always fully your current resources? appreciate the situation that they are looking at. David Cobb: Certainly, we provide a lot of That is not because they do not care about human comments on the legislative and policy proposals rights; it is because human rights are not the first that the Executive produces. We also provide thing to spring to mind. The commissioner would training to various organisations, including the intervene only in rare instances, not in every

82 †192 2511 14 DECEMBER 2005 2512 litigation. The interests of the parties and the on any area that they regard as involving human outcomes that they wish to achieve mean that rights? Notwithstanding the provisions that the human rights issues would not necessarily be commissioner’s statements are not subject to the canvassed on each occasion. laws of defamation, should the statement be a declaratory statement or should it simply be a The Convener: If the Parliament was to statement of the commissioner’s view, which concede the argument and extend the would carry a lot of weight because it came from commissioner’s powers to allow him or her to the human rights commissioner? intervene, the commissioner would have a pretty open-ended power. David Cobb: The commissioner’s power is to make a submission to the court and to say, “When 12:45 coming to your decision, consider this.” As with any other submission that a lawyer makes in court, David Cobb: Yes, but— the judge can decide whether to accept it. The Convener: You have also said that any Ultimately, if the case goes wrong in the law, the treaty or convention should be regarded as a decision can be appealed elsewhere. The situation source of powers. I would almost be happy to is not quite the same as in the European Union extend the commissioner’s powers if the sources courts, where what the advocate general says were more clear cut on how the commissioner turns out to be what the court says 99 times out of would use their powers. 100. As the bill is constructed, the commissioner makes a submission that is to be treated exactly David Cobb: Yes. They cannot— the same as anything else that is said to the judge. The Convener: The examples that you have The Convener: My final question is about how given are fairly broad and wide. the human rights commissioner would arrive at a David Cobb: The bill has a catch-all provision. I decision on what areas they want to take a view meant that we are concerned that, as the bill is on. What should trigger that? As you cast at the moment, everything is focused on the demonstrated, there are many areas that could be ECHR. All that I am saying is that the human chosen; what should trigger the commissioner’s rights corpus involves more than the ECHR. interest in one or another? Should it be entirely a Section 6(6)(d) mentions matter for the commissioner or should there be “other international conventions, treaties or other some criteria? international instruments”. Rosemary Burnett: It should be based on the If you found those, you would know what the importance of the test case in forming part of commissioner would be looking at. Scots law. The commissioner should consider anything that would contribute to Scots case law. Rosemary Burnett: To give an example, if we had a case involving somebody who was applying David Cobb: Section 12 indicates that the to seek asylum in this country, the Convention commissioner can, in their annual report, set out a relating to the Status of Refugees would apply. We programme of work or statement of priorities. imagine that the commissioner might want to Ultimately, it is not possible to know what will intervene in a tribunal as an expert on the arise, but that would at least give some guidance convention and the rights of the person under that on the matters that the commissioner would convention. regard as important in the immediate or near future. The Convener: What would make them an expert? Would it be the fact that they were the Stewart Stevenson: Finally and briefly, the commissioner or would they have to demonstrate Scottish Human Rights Centre has talked about expertise in the area? whether the commission could be a national human rights institution. There has been some Rosemary Burnett: The Scottish commissioner discussion of class A, class C and class D. If it is for human rights would presumably be able to possible to explain concisely what all that means, employ an expert on the Convention relating to the could you do so? Status of Refugees to make that intervention. David Cobb: That is a question that Rosemary There are hundreds of conventions that might McIlwhan could answer much better than I can. usefully apply in certain cases, such as the UN There is a set of criteria, and her view, as Convention on the Rights of the Child, the UN expressed in our evidence, is that the commission Convention on the Elimination of All Forms of as set up, in terms of the extent of its remit, Discrimination against Women or the International independence and powers, will not achieve class Convention on the Elimination of All Forms of A status. I know that the Scottish Executive thinks Racial Discrimination. differently, so there is simply a dispute of views. The Convener: What should be the effect of the Stewart Stevenson: Would you suggest that, human rights commissioner making a statement as a committee and as parliamentarians, we 83 †193 2513 14 DECEMBER 2005 2514

should seek to incorporate changes as the is something that the human rights commissioner legislation moves forward to enable it to deliver a could link into—they could have a direct influence commission with class A status? on how people arrive in prison and on the prison population. David Cobb: Absolutely. The Convener: That is a good note to end on. I Rosemary Burnett: The class rating relates to thank both witnesses for their excellent evidence. I how closely the human rights institution fulfils the thank Rosemary Burnett in particular for her guidance laid out by the United Nations in the opening statement, which added something to our Paris principles. If it meets everything on that discussion on the bill. The written evidence is also checklist, it is class A. If it does not, it is classed important, as we go through each stage, to remind further down. The fact that there is so little in the us of the views that have been submitted. bill about the protection of human rights means that the commission certainly would not achieve the class A status that we were told the Scottish Executive wanted it to have. Stewart Stevenson: You will forgive me if the answer is that I should already know, but are we aware of anyone having asked the United Nations where the proposed commission would be likely to end up? David Cobb: No. The Convener: I have one final question. A theme that has emerged this morning concerns the role of your organisations and of other organisations whose work crosses over into human rights. You mentioned the role of Andrew McLellan as chief inspector of prisons in Scotland, for example. Is it your view that the commissioner should try to avoid that kind of duplication? I ask because both Andrew McLellan and the previous inspector have been particularly vocal about conditions in Scottish prisons and I would argue that they have been effective in doing so. I wonder what a human rights commissioner would do in relation to prisons. I can envisage different areas that he or she might want to look at, such as the right to vote, but do you think that a commissioner should avoid duplication? David Cobb: I hope that the commissioner would avoid duplication. As with the UK commission, there will be memorandums of understanding. In the case of the Mental Health (Care and Treatment) (Scotland) Act 2003, the relationship between the Mental Welfare Commission for Scotland and the Mental Health Tribunal for Scotland is set out in a fairly short letter, which seems to be common sense; there does not need to be a massive tome on the relationship between the two. If it were necessary, I hope that everyone could agree which area belonged to which body. Rosemary Burnett: The inspector of prisons is concerned with how prisoners are looked after in prison, but there is the whole issue of how prisoners get to prison in the first place. I would like an investigation into the whole question of women in prison. There is some evidence to show that women are sentenced to terms of imprisonment for lesser crimes than men are. That 84 †194 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

42nd Meeting, 2005 (Session 2), 21 December 2005, Written Evidence

SUBMISSION FROM SCOTTISH PUBLIC SERVICES OMBUDSMAN

The SPSO is an independent and impartial body, established in 2002, that investigates individual complaints that the administrative actions and service failures of public authorities in Scotland have resulted in hardship or injustice. Our work includes seeking solutions to unremedied acts of maladministration or service failure and contributing to the improvement of public administration.

Human rights are fundamental to the concept of good public administration. Although the legislation governing the SPSO’s remit makes no direct reference to human rights, some of the complaints we deal with are in fact issues of breaches of human rights (for example the right to peaceful enjoyment of property, or to suitable care for the elderly). Further, maladministration may involve more general inconsistencies with human rights concepts, for example when a public authority fails to give adequate information regarding rights of objection or appeal.

This direct link between human rights and the work of public sector ombudsmen is widely recognised outside the UK. In some European countries, for example in some of the new accession states, the title of the national ombudsman is ‘Commissioner for Human Rights’. Similarly, the SPSO sees itself as making a valuable contribution to promoting human rights in Scotland and we would expect to work closely with the new body.

The views that we contribute here can be divided into three sections:

1. Jurisdictional issues

We welcome the Bill to establish an independent Commissioner to promote awareness, understanding of and respect for human rights in Scotland. We urge the Committee to ensure that our work and that of the new body complement and support one another. We welcome the decision that the new body will not be charged with investigating individual cases. The SPSO will continue to deal with complaints about administrative and service failures which contain a human rights component. We acknowledge that complainants do have the right to take legal action in relation to human rights violations. However, the SPSO considers that it is not always reasonable to expect a complainant to resort to what can be costly and adversarial court proceedings to seek an appropriate remedy to administrative human rights breaches. Also, there may not always be an appropriate legal remedy for those whose human rights have been violated.

Secondly, our assumption is that the new Commissioner will be within SPSO jurisdiction under the same legislation that applies to, for example, the Scottish Information Commissioner.

Given the above and our human rights casework, it is our view that there are jurisdictional issues that need to be clarified and that the new legislation should clearly specify the respective spheres of activity of the two bodies. We would urge the Committee to make clear the difference between the SCHR’s ability to enquire, and the SPSO’s powers of investigation. We recognise the possibility of dislocation with bodies that have been set up since devolution and we believe that a Memorandum of Understanding at an early stage would avoid the possibility of confusion, duplication and gaps.

We also endorse the need that the Committee has highlighted to properly clarify areas of devolution, for example, the respective remits of the proposed Commission for Equality and Human Rights for Great Britain and that of the SCHR.

2. Disclosure of Information by the Ombudsman

The SPSO Act 2002 has exacting restrictions on the disclosure of information to other bodies. To assist effective working with the new body, we propose an amendment to Schedule 5 of the SPSO Act 2002 to include the SCHR, in line with requirements from, for example, the Information Commissioner.

85 †195 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

3. Scope for co-operation and sharing of services

As noted above, we think it is important to ensure clarity about the boundaries of responsibility and potential interactions of the SPSO and the SCHR. Failure to do so effectively would confuse the public and risk duplication and inefficiency. Conversely, cooperation, which might also extend to a variety of support and other activities, could bring significant savings and efficiency gains.

We believe that practical opportunities exist to share services and reduce the overall cost of establishing and running the office of the SCHR. We would be pleased to provide details to the Committee on how this could be taken forward, and to give oral evidence on shared services and any other matter raised in our submission.

Professor Alice Brown Scottish Public Services Ombudsman 17 November 2005

SUBMISSION FROM DR RACHEL MURRAY, UNIVERSITY OF BRISTOL

I welcome the opportunity to present written evidence to the Committee in respect of the Scottish Commissioner for Human Rights Bill. As a result of research undertaken by myself and Professor Stephen Livingstone25 we identified three areas which determined a national human rights institution’s (NHRI) effectiveness: their capacity, namely the conditions under which such institutions are established; their performance, that is, the manner in which the institution carries out its work; and their legitimacy, specifically how they are perceived in the eyes of others. It is clear that it is the combination of a wide range of factors which render a NHRI effective, rather than one alone. What is also apparent is that decisions taken in the founding legislation of a NHRI were key in its eventual effectiveness and it was not just how the Commission then operated once it was established.

Should a Scottish Commissioner for Human Rights be established and what would it add to existing mechanisms?

Whether a jurisdiction should have a Commission or Commissioner on Human Rights depends on the particular political, social and constitutional context. Although the Paris Principles26 are seen as the criteria against which NHRIs are judged, it is clear from the experience of existing institutions that other factors also have a role to play in their ability to be effective. Similarly, although the Paris Principles advocate a number of criteria that should be applied when considering establishing such institutions, it is also clear that there is not one model that fits all jurisdictions. The remit, nature and composition of a Commission or Commissioner must reflect the particular situation in which it is created. Not only must a commission find its space between government and civil society, but also between the other constitutional and statutory institutions that may exist. NHRIs must carve out a role for themselves. They will need to determine how they fit and work with these other bodies and how to ensure that work is not duplicated.

Ideally, in society human rights will be mainstreamed across all institutions. Where other institutions that protect or promote human rights exist, for example, those for police complaints, prisons inspectorates, children’s rights, and there is a dynamic civil society, free media and independent judiciary, then clear consideration needs to be given to the need for a NHRI and what value it can add. When the NHRI is operational, the process of drafting Memorandum of Understanding with various institutions and organisations, in itself, can improve relationships and consider solutions for areas of potential overlap and difficulty. Regular meetings between institutions on an informal or formal basis can also be of assistance.

Of the NHRI that exist across the world, different models are adopted including whether there should be one or several named Commissioners and whether they are full or part time. All,

25 S Livingstone and R Murray, Evaluation of the Effectiveness of the Northern Ireland Human Rights Commission with Comparisons from South Africa, Nuffield funded research, February 2005. 26 UN General Assembly Resolution, A/RES/48/134.

86 †196 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D however, presume that the Commissioner is the public face of the institution, the spokesperson and the one which is often associated with the institution itself. In Scotland if the role of the Commissioner is to be the public face of the Commission, then the expertise in acting in this high profile capacity needs to be ensured in the relevant individual appointed. In addition, in respect to Sch.1, clause 5(1) of the Bill, there is a need to ensure that those who at any point in time need to be acting Commissioner, whether they are Commissioners or staff, display the same qualities as Commissioner themselves.

It is also important to clarify the respective roles of Commissioners and staff. The role of the Commissioner seems to vary and is often not well defined. It is often not clear in existing NHRI, particularly when they were set up, how involved part-time Commissioners should be in daily functioning of the Commission, and conversely, how involved staff should get in policy making decisions. This can cause resentment and tensions in working relationships. These issues need to be clarified at the outset.

A single Commissioner has the disadvantage of having great responsibility falling on their shoulders, as may often be the case with part time Commissioners and one full time Commissioner. In this regard it is essential that there is adequate staffing and other resources to support the Commissioner in their work.

It is also important is to ensure those that are appointed to the Commission, whether Commissioners or staff, as a collective reflect the experience and expertise necessary to enable that particular institution to function according to its mandate.

Accountability

Given that increased involvement of Parliament in the life of a NHRI is encouraged, many would welcome that the Scottish Commissioner for Human Rights is to be accountable to the Scottish Parliament. The relationship with Parliament is tied in with the institution’s accountability and, in this respect, with its independence. The accountability of a NHRI must be considered from two angles:27 firstly, the NHRI as assisting Parliament in its oversight function over government; and secondly, parliament ensures that the NHRI itself account for its activities, its budget and its operations.

The second issue ideally requires more than just a statement of what it has done, but should ‘require a person to explain and justify - against criteria of some kind - their decisions or actions … It also requires that the person goes on to make amends for any fault or error and takes steps to prevent its recurrence in the future’.28 Any founding legislation should ideally build into it opportunities for NHRI to engage with parliament in regular and meaningful way and time for parliamentarians to be aware of their content, in order for true accountability to be ensured. Although it can be a source of tension, it is also important to the NHRI’s accountability that there should be the opportunity for Parliament to engage with the institution on how it has spent its budget. Accountability should not, however, restrict the independence of the NHRI.

The Paris Principles put great emphasis on the need for any such institution to be independent. This is usually considered to mean independence from the executive. This can be ensured in a number of ways. Firstly the manner of appointing members of the institution should ideally be carried out by a body other than the executive, such as Parliament. Where Parliament is involved in the appointment process, however, there still needs to be careful consideration given to a number of issues. Given the manner of appointment goes to the credibility of the institution, the more transparent and public the process and the greater the involvement of civil society and attempts made to attract those who may be suspicious of such a body to apply, the greater the chance that the resulting NHRI will be perceived as independent and legitimate.

27 H. Corder, S. Jagwanth and F. Soltau, Report on Parliamentary Oversight and Accountability, 1999, at p.56. 28 Ibid. See also House of Lords Select Committee on the Constitution, The Regulatory State: Ensuring its Accountability, 6th Report of Session 2003-2004, HL Paper 68-I, 6 May 2004, at para 76.

87 †197 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

Appointment by the legislature is not without problems and it is important to ensure that the process is free from political manipulation: ‘a major difficulty is that making a Parliamentary committee responsible for nominations inevitably means that the nominations will reflect the party political make-up of the committee. The danger is that party political considerations consequently overshadow criteria more germane to the nature of the body for which nominations are being considered’.29

Whichever body is involved in the reappointment or replacement of Commissioners, it is essential that this is done ‘as soon as practicable’. The delays in Northern Ireland in appointing new members of its Human Rights Commission after terms had come to an end or members resigned made it particular difficult for staff of the Commission and remaining Commissioners to ensure its continual smooth functioning. A specific clause in the legislation may help to avoid such a delay.

Lastly, another benefit of the Scottish Parliament being involved in the appointments process is that those most directly affected by the work of the Scottish Commissioner for Human Rights are involved in its establishment.

The power and status of a national human rights institution comes from its semi-official status and in this regard there are expectations placed on a NHRI that it will have a closer relationship with government than other stakeholders might have. One way of achieving this is to ensure not only that opportunities for the NHRI to engage with government are made available in the legislation, but also that a Memorandum of Understanding is created between the various relevant government departments and the NHRI early on in its existence. The process of adopting such a document can facilitate a closer understanding of each other’s respective roles. Overall, the relationship with government, however, can be a difficult space for NHRI to mediate and the membership of the NHRI seems to be particularly important in dealing with this. Commissioners who have previous political experience may find this easier. However, such individuals need to have a degree of integrity to ensure they can maintain the independence from any executive interference. Furthermore, whilst considerable attention is often placed on independence from the executive, it is also important that a NHRI is independent from others who may inappropriately influence its work.

Members of NHRI should have the confidence to work on an inside track with government and develop close ties with the civil society and wider community and at the same time retain their distance as an independent institution.

Funding and staffing

What is seen as a key test of the independence of a NHRI is who determines its funding and many believe ideally the budget should be determined, or at least vetted, by Parliament.30 Even where Parliament does have this role, there is still the potential for tension between the legislature and the NHRI: the latter, for example, ‘could not say that it was independent on the one hand and then ask for resources from Parliament and not be required to give comments on how they are spending it’.31

Determination of staff and resources should be in the hands of the NHRI. Those determining the funding, whether government or parliament, should not become involved in decisions on how the Commission wishes to spend its money. As was noted in its Review of Powers the Northern Ireland Human Rights Commission expressly requested that a similar provision in the Northern Ireland Act (‘The Commission may employ staff subject to the approval of the Secretary of State as to numbers and as to remuneration and other terms and conditions of employment’,32 be deleted from the

29 Black Sash, A Tilley, ‘Process Problems May Haunt the HRC’, Democracy in Action (1995) at 8. 30 See, e.g. House of Lords, House of Commons, Joint Committee on Human Rights, The Case for a Human Rights Commission, at para 225. JCHR, Work of the Northern Ireland Human Rights Commission, Fourteenth Report of Session 2002-2003, HL Paper 132, HC 142, 30 June 2003, para 43. 31 See Livingstone and Murray, above. 32 Northern Ireland Act 1998, Schedule 7, 4(1).

88 †198 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D legislation.33 The government conceded to this: ‘We agree, however, that the setting of the Commission’s overall budget and the retention of controls over remuneration and other terms and conditions of employment provide sufficient discipline and assurance in relation to the use of taxpayers’ money. Within that context, we are therefore content to remove the need for the Commission to seek Ministerial approval to the number of staff they employ’.34

Proposed remit

It is also clear that a broad mandate which fulfils all the requirements of the Paris Principles may not necessarily produce an effective NHRI. Besides other factors, as outlined above, it is clear that a NHRI must be strategic in its use of its functions and resources. While in some respects everything will be a human rights issue, it is also apparent that NHRI do not succeed when they are not focused. In this regard there is usually considerable attention on the NHRI immediately after its establishment and great expectations on what it can achieve in its early years. It may be useful in this context to consider the establishment of a transitional commissioner who can operate in the background, appoint staff and get things up and running before launching the institution properly. This gives time for staff to meet, settle in and discuss strategic direction out of the spotlight and expectations of others.

The inquiry function is an important one but it is essential that a number of considerations are taken into account.35 The Commission should have sufficient funds to carry out the inquiry and able to allocate staff to this function full time if necessary. The NHRI should not be unduly restricted in how it defines the terms of reference for its inquiry. While it is to be welcomed that the Scottish Human Rights Commissioner will be able to call for evidence, consideration needs to be given to what role he or she will play. Is this a quasi-judicial function, an adversarial or non-adversarial process and how will evidence obtained be dealt with as a result?

It also seems important, given the experience of other NHRI, that the institution should be able to evaluate and monitor its own effectiveness. Having a formal opportunity where it can review its powers and the legislation on which it is based, can provide it with a powerful tool to alert the government and parliament to any difficulties it is facing in discharging its remit.

Dr Rachel Murray University of Bristol 6 December 2005

SUBMISSION FROM LORD McCLUSKEY

Role of SCHR

I accept that the establishing of a SCHR could do something to improve the understanding of human rights both in institutions and in society at large. In particular, I can see that, if it were empowered and able to assist voluntary organisations such as Age Concern Scotland, the Scottish Association for Mental Health, Children First, SACRO etc. etc. to discover how to use the new laws relating to human rights to advance the interests of those whom they exist to help, then it could be of value. But I doubt if that would be seen as, or is intended to be, its primary role. The whole character of the proposed SCHR seems to me to be slanted by Clauses 2,3 and 5 towards relating to, helping and intervening in the affairs of public bodies, not voluntary/charitable NGOs. Clause 4 is subordinate to Clause 2. Accordingly I have to ask why it is thought to be necessary to create such a Commission. It will be expensive (£1m.yearly). It will have substantial set-up costs. It will be another Quango, a quasi-bureaucratic institution consuming public funds. There are already other public bodies covering the territory in which the SCHR is likely to operate.

33 NIHRC, Report on Effectiveness. Report to the Secretary of State Required by Section 69(2) of the Northern Ireland Act 1998, Belfast, 2001, Recommendation No.3. 34 NIO, The Government’s Response to the Northern Ireland Human Rights Commission’s Review of Powers Recommendations. A Paper for Consultation, May 2002, para 21. 35 See Workshop on the Use of Public Inquiries and Formal Hearings by Commonwealth Human Rights Commissions, 25-27 February 2003, www.britishcouncil.org/report_kampalaworkshop.doc.

89 †199 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

Inappropriate expenditure

It is very important indeed to consider whether or not the funds might be better spent in different ways to achieve desirable ends in the field of human rights without incurring the same bureaucratic waste. NGOs in the voluntary sector, such as those mentioned (and with some of which I have been involved), are wholly unable to find cash to spend on discovering and engaging the human rights of their client groups. Indeed I do not know one that can afford to employ a lawyer with a remit to study human rights law as it might be invoked to assist especially vulnerable members of society in their client group.

The responsibility of others

The job in relation to public authorities ought to be done by the public authorities themselves (most have access to well paid lawyers), and by the courts (ALL courts) [s.2 of the Human Rights Act 1998]. These bodies already have a statutory duty to comply with and enforce the human rights legislation that has been introduced into our domestic law: see section 6 of HRA. The courts have to apply the human rights law in every case (s.2 of HRA). Furthermore, the Law Officers, the Advocate-General and the Presiding Officer [cf Sections 31& 32 & 33 of the Scotland Act 1998] have responsibilities to ensure that the devolved administration does not act in breach of the law: see also Section 29 [29(1) and (2)]. The Privy Council also has a role. So does the Secretary of State for Scotland [section 35]. See also sections 54, 57, 58. ((Thus the statement in the Amnesty International submission, [“2.1 The only body which offers human rights protection at present is the Scottish Commissioner for Children and Young People”] is, I believe, mistaken.)) There are already whole batteries of qualified and highly paid people tasked with upholding and advancing understanding human rights in the public sector.

Quality of staff

What calibre of person would you recruit for this salary (£75k)? The person ought to be a lawyer because almost all human ‘rights’ are created in legal documents, whether they are enactments, treaties, Conventions or the so-called “jurisprudence”/case-law of the European Convention on Human Rights or of the Commonwealth and American courts. A non-lawyer would be well out of his/her depth. Most able lawyers of the necessary calibre, whether in private practice or in public office, will be earning more: cf. the salaries of judges, sheriffs, the Crown agent, etc. etc. I doubt if good, imaginative lawyers would be attracted into this office. The Crown Agent earns c. £110,000 + per annum, the Executive’s head of justice and legal services, c. £125,000 (Scotsman 5/12/05).

Duty of public Authorities

If you set up a body such as the SCHR, you are providing a mechanism for others to evade their responsibilities. It is for the parliament, the Executive and all public authorities to be familiar with the human rights legal requirements (especially the legal ones) and to take steps when preparing subordinate legislation, or bye laws or engaging in their statutory activities, to give effect to the legal rights of those likely to be affected thereby. They should not be allowed or encouraged or enabled to say, “The Commissioner never told us”. See the parallel with the US Congress and the US Supreme Court: legislators pass the buck on awkward questions (such as abortion).

Teaching human rights

If public authorities/institutions or any of them need instruction or teaching about human rights (which they might) then that could well be provided, and I believe more cheaply, by a body such as the existing judicial training body: (they would need an extension of their remit). Their people are highly expert and have access to the huge library of books and other materials that one needs to have access to in order to gain and retain a sufficient and expert knowledge of human rights law. They already do such work well for the judiciary, including magistrates. The Crown Office must also have had a similar training scheme – which is no doubt on-going. Why neglect these resources?

90 †200 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

Others already doing the work

There are already others at work in this field with overlapping jurisdictions: “Commissioner for Children & Young people” and Freedom of Information Commissioner, the Courts and various UK bodies.

Vagueness of the so-called “rights”

The whole ambit of the remit and the specification of the “rights” involved is far too wide/vague: see Clause 2(2) of the Bill. It includes “rights” contained in “any international convention” etc. that the UK has ratified. Has anyone asked what these are and how many there are? They seldom create real “rights” at all: that is why States like Libya and Egypt can cheerfully sign up to them, knowing that they are unenforceable. If a “right” is unenforceable it is not a right at all. The whole Bill uses the word “Rights” loosely: a “legal right” is something that can be vindicated in a court of law. So- called moral rights cannot. So the so-called “rights” referred to in section 2(2)(b) of the Bill are not rights at all. There must be a real danger that the Commissioner, having little better to do but a large canvas on which to do it, will turn into a font of “political correctness”, producing more of the silly ideas that we read about every day, being ideas that derive from the notion that certain groups have tender sensibilities that we must not risk offending. MSPs will need no reminding that the constant emphasis on rights does little to remind people of their responsibilities.

Some points of detail

x Will the public be able to make representations to the Commissioner? E.g. Fathers 4 Justice” or other lobbying bodies. Would legal aid be available to lobbying bodies or the like?

x To whom are the “reasonable” fees to be paid, in Clause 4(2)?

x What is meant by “question” in Clause 6(1)?

x What rules (if any) of Evidence are envisaged under clause 7 especially 7(3)?

x Clause 11: can the Commissioner take part in proceedings in the House of Lords (Supreme Court), the Privy Council, the Land Court, Industrial etc. tribunals?

x Schedule 1, para 3(1): allows a member of the House of Lords to hold office: is that appropriate?

x Schedule 2(2): is there to be a right of appeal from the sheriff’s decision?

John McCluskey 6 December 2005

91 †201 2521 21 DECEMBER 2005 2522

Equality the complaint that they had not got the Scottish Parliament same type of house as someone else—that would be a human rights and service failure matter that Justice 1 Committee the ombudsman’s office could examine. Carolyn Hirst has one or two specific examples to share. Wednesday 21 December 2005 Carolyn Hirst (Deputy Scottish Public Services Ombudsman): My examples might [THE CONVENER opened the meeting at 10:21] help. The first relates to a report that we issued recently. If an older person who is in hospital Scottish Commissioner for cannot eat unaided and her teeth are on the locker Human Rights Bill: Stage 1 next to her but nobody comes to cut up her food, she cannot eat the food that is on her plate. Another example is basic: a person calls for a The Convener (Pauline McNeill): Good bedpan, but wets the bed because the bedpan morning and welcome to the Justice 1 nd does not arrive in time. The result in both cases is Committee’s 42 and last formal meeting of 2005, loss of dignity. although I am sure that we will have more work to do this year. All members are present. I ask them, There might be an issue in respect of if a home as usual, to switch off their mobile phones. for older people is to be closed or a property is to be demolished without appropriate consultation of Agenda item 1 is the Scottish Commissioner for the people in those properties. Such matters, Human Rights Bill. I welcome our first panel, which which we encounter daily under the heading of comprises Alice Brown, the Scottish public maladministration, can also be interpreted as services ombudsman, and Carolyn Hirst, who is breaches of human rights. one of her deputies. Thank you for attending and for your written submission—it is helpful to have Margaret Mitchell: I will tease that out. notice of what you will say. This morning, we will Professor Brown mentioned economic and social put your comments on the record. human rights. Is it fair to say that you also cover civil and political human rights—the so-called Margaret Mitchell (Central Scotland) (Con): moral human rights? Good morning. Professor Brown, your submission says: Professor Brown: We cover the moral human “Human rights are fundamental to the concept of good rights less directly. We need to consider human public administration.” rights in the context of the country in which we operate. We would not, for example, examine a Do you have practical examples of that? person’s claim that he or she was being tortured Professor Alice Brown (Scottish Public because we do not cover such matters. We have Services Ombudsman): Yes—we have quite a to be clear about what areas we cover. number of practical examples. If you have looked Our point is that, rather than view human rights at the newspapers today, you will have seen as an abstract concept, we should recognise that it reports on health service complaints. Issues that is a day-to-day issue for most people as they go arose in some of those complaints concerned about their business, and that aspects of human basic dignity in the treatment of patients while in rights arise through delivery of services to those hospital, which is a fundamental human right. people. For most people in Scotland, that is the It is important to say that we consider economic most direct way in which they will encounter and social human rights every day—such human rights issues, which indicates the type of consideration is built into our office’s work. Some issues that we deal with daily. complainants do not necessarily articulate their I should stress that Scotland has very much led complaints in human rights terms, but once the the way in creating a one-stop-shop ombudsman complaints are analysed and investigated, human service. We cover the delivery of public services rights aspects of the day-to-day delivery of across the board, including services that are services emerge. provided by local authorities, the health service, If a local authority or other public authority failed housing associations and the Scottish Executive. to take into account a duty under human rights We provide a wide range of cover and we offer an legislation, that would in our view be important alternative to the courts. maladministration and would be a finding against If you consider our work in the context of the that authority. If an authority did not deliver the whole administrative justice system, you will be same kind of services to one section of the aware that people can raise their problems using a community as it did to another—for example, if we number of different mechanisms. First, they should think of diversity and equality issues, a person raise their complaint with the body with which they might raise through the Commission for Racial have encountered a problem. That might escalate 92 †202 2523 21 DECEMBER 2005 2524 through a continuum of options. An ombudsman I return to the fundamental question that you office offers a very important option; it provides an asked about the role of the new commissioner. independent, accessible and free service. It is an Before establishing any new office, we must be alternative to going further down the line to the clear about what its specific duties and remit are to courts. It might be that the courts provide the only be. The first principle is to ask whether it is way to resolve certain cases, but most day-to-day possible to achieve what we want with bodies that issues for most people in Scotland can be already exist. Our answer to that, in relation to resolved much earlier. human rights, is that we can—certainly in relation to individual complaints. It would therefore be a Margaret Mitchell: If a human rights duplication to create another body to consider commissioner were appointed, what would the individual complaints. pecking order be? Would the new commissioner be responsible to you, or would you be If we do create the new body—in my view, and responsible to the commissioner? as we stated in our submission, the importance of the advocacy and promotional roles that such a Professor Brown: I do not like to think of the person or office could provide should be matter in terms of a pecking order; I like to think of stressed—and if the person heading it was it in terms of our having complementary roles. In allowed to stand back from day-to-day issues and our submission, we argue that the human rights to examine good practice in Scotland and how commissioner, should one be appointed, should Scotland could learn from other countries in some come under the jurisdiction of the public services aspects of human rights, that would be a very ombudsman. specific role. That would be advocacy, however. A number of different offices have been created Our role is to investigate, adjudicate and do during the early years of devolution and we can preventive work, which is a different, quasi-judicial deal with complaints about the operation of some role that involves considering specific cases. It of those offices; for example, the operation of the allows us to comment on systemic problems that freedom of information commissioner would come we see and, crucially, on where lessons have to under our jurisdiction, as would the work of the be learned. Auditor General for Scotland. Of course, we are If a new office of commissioner for human rights also under their jurisdictions. It is about is to be created, it must be seen as part of the complementarity. governance and regulatory structure of Scotland. If people have a problem with regulators and We must be absolutely clear that it fits into that others, we are the office that they can come to, framework and that the roles of those in the because how those bodies have operated and structure complement, rather than duplicate, one conducted their business is subject to our another. investigation. I see the role of the Scottish commissioner for human rights as a 10:30 complementary one. Nonetheless, I would argue that the new office, if it is created, should come Margaret Mitchell: Is there a better way to under the jurisdiction of the ombudsman’s office. perform the advocacy role? We know that expertise exists in local authorities, where there Margaret Mitchell: We are getting to the heart are highly paid lawyers who have the expertise to of the matter now. There is a plethora of different deal with human rights. Do we need to create a organisations that includes pressure groups, commission or commissioner when that expertise trades unions, the courts, public sector lawyers, exists and those people could perhaps take on the law officers and privy councillors, which all have a training and advocacy roles that are envisaged for duty to implement the law with respect to human a commission or commissioner? rights. Is there a need for a commissioner, or should we follow the European model, as you Professor Brown: Fundamentally, that is a suggest in your submission? In some of the question for MSPs to answer. I can see the European Union accession countries, the public benefits of having a commissioner, in that we services officer is also the human rights officer. would have an advocate—an individual, perhaps—who would be known throughout and Professor Brown: You missed MSPs and outwith Scotland. That would provide a focal point councillors out of that list, who also play a crucial for the debate about human rights, but we must role. We must acknowledge that many people will acknowledge that there are many other players come first to you or councillors about certain who deal daily with human rights in local issues, as is appropriate. It is a matter of authorities or other public authorities. Whether proportionality and of what the most appropriate they give legal advice or do other work, they will thing is for the person and for the issue in be part of the debate, as that is part of their work. question. We should not suppose that one system will work for all cases.

93 †203 2525 21 DECEMBER 2005 2526

There is a good reason for having a figurehead what outcome they are looking for, determine what role, but the real trick is to mainstream human it is feasible for the body that has been rights into everyday practice, which is where the complained about to do and then come up with a roles of individual human rights advocates within recommendation that will, most of the time, be organisations are particularly important. A implemented because it is reasonable and seen to figurehead would allow for the promotional, be so by both parties. That gives a large degree of advocacy and public awareness-raising role. It flexibility and practicality in what we can do to would not be an alternative to having individuals remedy injustice. Most individuals not only want with expertise; it would be complementary. That is their personal injustice to be remedied but want to the crucial point. ensure that the injustice does not happen to somebody else. The latter is the second part of Margaret Mitchell: It has been suggested that our job: we go back to the body and ensure that advocacy will not be taken much notice of if the the lessons have been learned. commissioner does not have enforcement powers. Margaret Mitchell: That is great. There is just Professor Brown: I do not necessarily accept one final area on which I seek your opinion. At the that, because there are other ways to build moment, the commissioner’s remit extends only to relationships with organisations that are under public authorities. Should it be extended so that one’s jurisdiction, as we do. The commissioner the commissioner can examine voluntary non- could acquire credibility through the work that they governmental organisations? will do, and people will then be prepared to accept the recommendations that they make. Most public Professor Brown: Again, that is a very sector workers in Scotland want to deliver good interesting question. If I may, I will answer it in public services and want part of that to be good relation to our remit, which may be helpful to the administration that conforms to human rights committee. Under our remit come public practice. I think that we might encounter a problem authorities—listed authorities, as they are called in only in exceptional cases, not necessarily in the our legislation. However, when we give economic or social spheres, so we should design presentations on our role, we always add an “and systems not for the exceptions, but for the majority ….” at the end to cover the voluntary organisations operation. or private sector bodies that deliver services on behalf of public authorities; in other words, the At this stage, the lack of enforcement powers organisations or bodies that are paid to do so. I does not cause me great concern. Under the am thinking of private hospitals, for example. In Scottish Public Services Ombudsman Act 2002, those cases, such organisations or bodies come we do not have full enforcement powers. under our jurisdiction because they are publicly Parliament debated the point—with which I funded. agreed—that it is up to Parliament to enforce some of the recommendations that we make and Of course, increasingly in Scotland and to hold people publicly and democratically elsewhere, the line is blurred between the private accountable. So far, we have not had to use our and public sectors. In fact, our jurisdiction is much full powers. We can lay a special report if farther-reaching than would appear to be the case someone does not agree with and implement our on the face of our act. Any body that acts on recommendations. We have never had to do that, behalf of a public authority automatically comes although we have had a dialogue with Parliament under our jurisdiction. That is a route that the about what it would do should we enter that committee might want to think about. territory. Enforcement can come through a Margaret Mitchell: Thank you—that is very democratically elected body. helpful. Perhaps Carolyn Hirst has other points to add. Stewart Stevenson (Banff and Buchan) Carolyn Hirst: Perhaps I should define what the (SNP): I want to pick up on some of what you said ombudsman does. The Scottish Public Services about the national health service in Scotland. I will Ombudsman Act 2002 sets out what we do, which explore the issue by means of an example. Two is to examine maladministration and injustice on days ago, I received information in a parliamentary the part of public authorities. Another way of answer that showed that all the health boards in saying it is that we protect the rights of individuals Scotland conform to the standard that the Scottish who believe themselves to be the victims of unjust Executive has set for provision of in vitro acts by the public administration. If an individual fertilisation. However, the answer also showed believes themselves to be a victim of an unjust that, although the maximum waiting time for IVF in act, we consider that to be maladministration in the Highlands is six months, the maximum wait in the main, but it can have a human rights element. Grampian is five years. Is that unjust to someone in Elgin compared to someone in Nairn? Because we do not exist to enforce a remedy, we are able to talk to the individual and find out

94 †204 2527 21 DECEMBER 2005 2528

Professor Brown: That is a very good exam system lacked clarity, was insufficiently question. My answer is the usual ombudsman straightforward and was not always accessible. answer: it depends on the circumstances. We are That is no criticism of the previous individual not in place to second guess how people allocate offices, which were established in particular their resources. We can examine how they have circumstances. However, when Scotland asked reached a decision on prioritisation of one aspect itself fundamental questions about what kind of of their services over another, but under our complaints system it wanted post devolution, the jurisdiction we have a broad remit that says that key principles that were set down were clarity, we can examine failure in a service or failure to simplicity and accessibility. Those principles provide a service that is a function of the body in should apply to the creation of the office that we question. are debating this morning. If such a case were to be brought to us, we It is interesting to look at Wales—which followed would consider whether the body’s actions were Scotland’s example and, encouragingly, learned reasonable in the circumstances. There is always from what we did—because we can learn from a tension between what should be available to certain improvements that have been instituted everyone who lives in Scotland and being there. If we think back to the early days of sensitive to the pressures and needs in different devolution when we were planning how Scotland areas. We are a small but diverse country; the should run its political system differently, the aim tension in service delivery is to ensure that was not simply to open up the policy-making and everyone gets a basic delivery of certain services policy-design processes at an early stage to and that resources are allocated in a way that encourage debate on things such as what kind of recognises the particular circumstances of rural education or health system we want. The aim was and urban Scotland. In that type of case, we would also to ensure that, once legislation was passed, consider it to see whether a decision had been we would be grown up enough to consider after a reached without maladministration and whether few years whether the legislation was doing what what was done was reasonable in the we wanted it to do and whether parts of it were circumstances. effective. We have particular proposals on how the Scottish Public Services Ombudsman Act 2002 Stewart Stevenson: So the answer is maybe. could be improved by what we have learned from Professor Brown: Yes. good practice in Wales and from what is now being done in Northern Ireland and England, Stewart Stevenson: Right. I am asking the where consideration is being given to the different question for a fairly obvious reason. In both cases, ways in which—given the restrictions that apply— the performance conformed to the required the activities of the different ombudsman services standard, but the end result was dramatically might be combined. different—the ratio was 10:1 in favour of the person concerned. Let me give a practical example. If an elderly person requires care and something goes wrong Professor Brown: But the health board might with the delivery of that care—the problem might give a counter-example, in which it says that, involve their medical treatment in hospital, the although it is taking longer to deliver on this support that they received in the community after treatment, it is delivering in six months on another discharge or some aspect of housing—the person one. Part of the debate that boards have is on can now come to our office to deal with everything. prioritisation and allocation of resources. That is People do not need to go through a multiplicity of what we appoint boards to do. It is not therefore doors to get answers to their questions, because right for us to second guess that judgment. we can do everything for them. Stewart Stevenson: I will move on. You said Stewart Stevenson: You make the case for that the Scottish public services ombudsman was simplicity of access, but let me suggest an almost comparatively—you might even have said this caricature situation. If a racial minority gay female without qualification—unusual in having a one- disabled pensioner is not receiving the treatment stop shop. To what extent does that make the that they require from the health service, but the public services ombudsman here more effective basis on which treatment is being denied is than comparable bodies in other jurisdictions? So unclear, which door should they go through? They what? Does that help the so-called customer? could choose to knock on a considerable number Professor Brown: Indeed it does. As members of doors. Is there a case for having a single door? might recall from the debate in the Scottish Are you trying to argue that we should have a Parliament, the decision to set up a one-stop shop single office holder who holds all the posts under was very much driven by the customer point of the various pieces of legislation so that we avoid view. It was argued that it would be confusing for complications for the customer? people who had a problem to be required to go through many different doors. The previous 95 †205 2529 21 DECEMBER 2005 2530

Professor Brown: That gets to the heart of the role and that we are clear about why we want it point that I made at the beginning. At the moment, and how we are going to support it, but it must not the individual whom you have caricatured can duplicate the role of others. Examination of come to our office to complain about a problem on individual complaints would be duplication. all those grounds. Even if they voice their Stewart Stevenson: Given that you are already complaint in terms of discrimination, they need not dealing with human rights issues, would there be go to the Commission for Racial Equality, which is merit, at the very least, in an administrative unable to do much about individual complaints. integration? We can deal with individual complaints because an authority’s failure to comply with a duty to treat Professor Brown: Yes. people fairly and without discrimination is maladministration. For example, in the recent Mr Bruce McFee (West of Scotland) (SNP): cases that were brought against Glasgow City Let us take that a wee bit further. Rather than just Council for discrimination in pay, people could an administrative integration, could there be full have come to us as an alternative to going to the integration of the work of a human rights court or tribunal. That brings us back to my point commissioner and the work of a body such as that people have different options so they need to yours? Is your contention that that would not only consider which is the most appropriate and be possible but more desirable than setting up a proportionate route for them. separate office for a separate commissioner with a promotion-only aspect to the work? However, the fundamental issue behind your question is the extent to which other roles could be Professor Brown: One has to make a wrapped up with that of commissioner for human distinction between an office holder, who might be rights. called a commissioner for human rights, and the office. The office could be shared with someone else. There would be more than one option, but if 10:45 the office was shared with us we could clearly It is quite instructive to look at other countries, offer to provide services such as information and if you look at other European models you technology. We have designed a whole new IT certainly find, as we say in our submission, that system that very much suits our purposes and we the newly emerging states have gone down the have shared our ideas with ombudsmen in other human rights route—that is where context matters, countries and with some commissioners in this because there are some big human rights country. We have already shared quite a lot with issues—and have wrapped together the role of the the offices that currently exist, but the real trick is ombudsman with a human rights role. Of course, in the creation of the new office and in weighing up the types of human rights issues that people in the possibilities. We could share IT, human other countries are dealing with are quite different resources and finance services. from the human rights issues that we are talking Another possibility is to move slightly beyond about today; we are in a privileged position. For that and to say that the other key function that we example, on Monday we had a visitor from the fulfil is investigation. The bill foresees a ombudsman’s office in Malawi, which has the commissioner with the power to carry out inquiries, same extensive remit as we have but is dealing but it is unlikely that the commissioner will have a with issues that are, for obvious reasons, of quite pool of people sitting waiting to carry out an inquiry a different order to those that we are dealing with. and not doing anything until an inquiry arises, One interesting European development, which because one would not expect that to happen was highlighted in a speech by the new European every day. However, if there was a pool of ombudsman, is that some states have now investigators from which to borrow, the incorporated a human rights dimension into the commissioner could head an inquiry using some of role of the ombudsman—not just the new states, the resources and investigation expertise that we but more traditional, older states, including have. In our case, an inquiry is initiated by the Sweden, which in 1809 created the first complainant and conducted in private, whereas for ombudsman—by changing their legislation. There the commissioner it would be initiated by the are different models in different European states commissioner and conducted in public. and around the world, but it is now recognised that Nonetheless, the processes involved would not be elements of separation must be carefully handled, dissimilar. Economies could be made if the office and that it must be clear why roles are being holder was able, under an umbrella system, to separated and what role a human rights draw on the shared services that he or she commissioner would have. That is why we argue required to fulfil the function of the office, as well that, if there is a role for a commissioner, we will as on a pool of investigative capacity. support that role if it is clearly defined. It is The third strand is joint working, which we important that there is a distinctive commissioner’s already do with other commissioners. We have a

96 †206 2531 21 DECEMBER 2005 2532 memorandum of understanding that allows us to Mr McFee: Can you elaborate? work collaboratively. We are a one-stop shop, but Professor Brown: Advocacy, promotion, the field is becoming crowded. For good reasons, education, awareness raising— there will necessarily be distinct offices, but we need to be able to join up our investigations. For Mr McFee: Those are part of the same package. example, if a complaint comes to me that relates to the Auditor General for Scotland’s remit and my Professor Brown: Yes, but we already do remit, with the agreement of the complainant we awareness raising, which we would be integrating will work closely together on that. as well. That is where the complementarity would come in. Mr McFee: So you are more of a department store than a one-stop shop. Mr McFee: What are the main differences between the human rights commissioner’s Professor Brown: You could say that. proposed power to inquire and your power to investigate? Mr McFee: You suggested that one of the add- on values, if not the only add-on value, would be Professor Brown: There are some important the figurehead role. How much weight would you similarities. We have powers similar to the Court of attach to the argument that the creation of a Session’s to require information, to get access to figurehead could be counterproductive, in that the people and to interview them. The main difference commissioner’s role should be shared across a would be that the human rights commissioner’s range of bodies that have a human rights remit? inquiries are likely to be held in public. We usually Indeed, having a figurehead may make others hold all our investigations in private, mainly think that somebody else is taking care of the because there are strong confidentiality rules. human rights aspects across a wider area than is Many people do not want everyone to know that in fact the case. they have a problem; even when it comes to issues to do with their human rights, they do not Professor Brown: I do not see the situation as necessarily want to advertise it. They want an either/or. I have a long history in the equality someone to deal with their problem confidentially. and diversity movement and have long heard the We always anonymise people in our reports. argument that if someone has the job of doing it, Some people tell the press that they have been to the rest of us do not need to bother. We often the ombudsman and what happened, but in our need both. We need someone who can articulate experience most people do not want that. a vision of what a human rights culture would look like and who raises the aspirations in the public Carolyn Hirst: Under the Scottish Public bodies under jurisdiction. However, on a day-to- Services Ombudsman Act 2002, we can only day basis, that vision has to be mainstreamed into investigate if somebody brings a complaint to us; the culture, attitudes and behaviour of staff who we cannot do it on our own initiative. That was are delivering services. That is where the real trick discussed when the legislation was going through lies. the Parliament and it was decided not to give the ombudsman that role. We can only react to Carolyn Hirst: The real trick is whether public complaints that come to us. We can carry out authorities in Scotland—as they go about their another type of report to talk about general daily business, do their job and make decisions— systemic issues, but we cannot initiate ask themselves whether they have taken human investigations. rights aspects into account. That is about mainstreaming. Professor Brown: That is one area about which we would like to return to talk to the Parliament. Mr McFee: Is there anything in the bill that your Having reflected on three years’ experience, I office, given the promotional finance, could not think that it would be useful to have that option do? available to use in particular circumstances. The Professor Brown: We are not advocates. We Northern Ireland ombudsman is arguing for such a have to be seen as independent and not on power in his jurisdiction. We come across things anyone’s side. We have to be clear that an that we know are happening, but unless someone advocacy role is different. makes a complaint, we can do nothing. That means that we cannot move quickly. Carolyn Hirst: That applies to the inspection powers, too—we are not inspectors. As part of revising and improving our processes, we are keen to find ways to quicken the process Mr McFee: I am talking about what you could do for people. Most people have a problem that they if you had the powers in the bill to inspect. You are are upset about; they want it to be handled as saying that your concern would be about the quickly as possible and they want to get on with advocacy role only. their lives. We add no value if we add to the Professor Brown: Mainly. anxiety that they feel. We would like the ability to

97 †207 2533 21 DECEMBER 2005 2534

fast-track complaints and the additional power to to do an inquiry into such an issue—that could be make own-initiative investigations if no one has a complementary role. However, that would complained about an issue that has not been require good relationships between the office addressed. holders. Mr McFee: You think that acquiring such a The Convener: Bruce McFee has a brief power would be desirable. question. Professor Brown: Yes. Mr McFee: I apologise—I meant to ask this earlier. Is there any reason why the advocacy role Mr McFee: If you acquired that power, we would could not be undertaken by voluntary simply return to advocacy and promotion. organisations with increased funding? Professor Brown: In the main, but a human Professor Brown: I never rule out any options, rights commissioner might feel more strongly but the decision is not for us. My immediate about some issues than an ombudsman did. The response is that the status of the office holder is a grounds on which to do an inquiry would have to signal that parliamentarians hold an issue in high be clearly chosen. regard and that society thinks that it is important. Carolyn Hirst: The commissioner for human Further down the line, we may question whether rights would consider not just convention rights, the post is still necessary, but given how other but the whole range of human rights instruments, European states are developing and given all the in which we have no locus. There are crucial charters, you as parliamentarians are showing differences between what we do and what is leadership by taking the matter seriously. You are proposed for the commissioner. saying that you want the rest of the public services and others to take it seriously and you are Mr McFee: You say that if the commissioner’s recognising it by giving it the status of an office. proposed inquiry function were strengthened by its However, the decision is for the Parliament. being allowed to take up individual cases, that would result in quite a crossover between your role and the commissioner’s role. Does the bill 11:00 propose that the commissioner could cover any The Convener: You make an interesting case subjects that you cannot, apart from those in self- for expanding the powers of the ombudsmen. No initiated investigations? offence is intended—in fact, I am sure that you will Professor Brown: I am trying to think of agree with me—but the term “ombudsmen” is not examples. appealing. It does not give the impression to the public that you are about promoting human rights. Carolyn Hirst: The bodies that we investigate You explained well what you do—as MSPs who need to fall within our jurisdiction. Those bodies refer constituents to you, we are all familiar with are listed in the 2002 act. your role—but you do not have expertise in the Mr McFee: I will rephrase the question. Does application of the European convention on human the bill specify any subjects on which you cannot rights, or do you? take up individual cases? Professor Brown: That is a good point, which Professor Brown: None immediately comes to relates to the question of where the specialism mind. lies. The trick is to ensure that we have specialists and generalists and that the two work together. Marlyn Glen (North East Scotland) (Lab): I We talk about having knowledge champions in our presume that your powers will not change in the office, because we need to be specialists in lots of near future, unless we suddenly— areas, whether it is European law, the delivery of Margaret Mitchell: Scrap the bill. health care or housing and planning regulations. We have a lot of specialists, whose knowledge we Marlyn Glen: It is always possible that we will have to use wisely. We cannot all be specialists in go off at a tangent. everything, so they are the people to whom others If you made an investigation that you thought in the office go when they are examining specific should have a follow-up inquiry, could you pass it areas. on to the commissioner? The Convener: Are you arguing that you could Professor Brown: That is interesting, because fill the gap in your body by employing someone it links to a point that Carolyn Hirst made. If we with the relevant expertise? keep seeing many cases on the same subject, we Professor Brown: That is not the argument that can lay what is called an “other” report before I am making. I am saying that we would look for Parliament, which says that we think that there is a the power to pursue own-initiative investigations, systemic problem. The commissioner might decide which can be about anything. That is a separate

98 †208 2535 21 DECEMBER 2005 2536 issue. We have expertise in human rights issues high-profile inquiries. The question is what is within the office, because we deal with them on a proportionate for a particular issue. It is difficult to day-to-day basis. However, if you are asking put an average figure on the cost of an whether we have someone who is called the investigation. We can do it, but we would have to human rights person, Carolyn Hirst is closest to add so many qualifications that it would not be that role, in the sense that— particularly helpful. Much of the cost would be associated with staff time, because that is what The Convener: No. Let me be clear. Given what most of an investigation is. We can pay expenses you have said, which side are you coming down to people who come to inquiries, but investigations on? I am sympathetic to your case. You argue well can be costed in staff time. that we should not create something that results in duplication. That is clear. Because the Mr McFee: What is the most that you have commissioner—if that role is created—will do a paid? great deal in the public sector that you already do, Professor Brown: Do you mean the most that I wonder where the gaps are. It would be good to we have paid for an individual investigation? receive guidance from you. Do you err towards extending the powers of the public services Mr McFee: Yes. ombudsman—such as by adding the power to intervene in court cases as described in the bill— Professor Brown: The longest investigation and providing expertise and resources to deal with that we have had probably took about a year, but human rights, or do you think that our work lies in that is unusual in current circumstances. identifying where we can place clear duties on a Carolyn Hirst: That would not take up all of an human rights commissioner that do not duplicate investigator’s time. your work? Professor Brown: No, it would only be a small Professor Brown: My apologies, but I proportion, so we are talking about £10,000 to misunderstood your clear question. Our £15,000. submission states that we would go for the latter, with the strong caveats that I have just articulated. The Convener: Perhaps if there are more However, if the Parliament considered the former, questions on cost, we could write to you, as you we would be happy to engage in a discussion obviously have experience of that. about it. Professor Brown: I would be happy to answer. Mr McFee: For my benefit, what was the latter If anyone wanted to visit the office, I would also be and what was the former? happy to go through the details with them. Professor Brown: The latter was the option that The Convener: That is a kind offer. When it we list in our submission, which is that we support comes to writing our report, we might have one or the creation of a Scottish commissioner for human two detailed questions on which we would value rights, with the caveat that the role is clearly your experience and view. understood and that it is distinct, complementary I am afraid that we have to leave it there. I thank and focuses on the advocacy, promotional, you for coming this morning and for your evidence, educational and awareness-raising aspects. which was clear and helpful. Mr McFee: But the preference is for the former. I welcome our second witness. We have Professor Brown: That is for you to decide. We switched the witnesses round: we will hear now are not saying that. Our submission makes the from Lord McCluskey, as he has to leave a bit point that we support the creation of the office but, sooner than anticipated. We are grateful to Rachel should you consider the former—integrating Murray for agreeing to come later. human rights with our office—we would be happy Thank you, Lord McCluskey, for your clear to discuss it with you. written submission and for coming to speak to the The Convener: That is helpful. Justice 1 Committee. You provide an interesting perspective on the bill and we are grateful for your Mr McFee: On cost, you mentioned— evidence. The Convener: You need to make this very Lord McCluskey: Before you begin, I will make brief, because we have to stop. one thing clear. I have a reputation in some circles as being against human rights. I am totally in Mr McFee: I will. Do you have any idea of the favour of human rights and have been involved in average cost of conducting inquiries, or could you human rights for many years. I helped to found the give us ballpark figures at either end? human rights institute of the International Bar Professor Brown: Our budget is roughly £2.5 Association and was its vice president for the first million. About 2,500 cases came to us last year, five years of its existence. I have lectured on although they did not all involve investigations or 99 †209 2537 21 DECEMBER 2005 2538

human rights in many parts of the world. I was of training can be done by existing bodies that against—I wrote a book about it—trying to deliver have the expertise and know what they are talking human rights through the judiciary rather than about. I am not at all sure that the lowly paid through democratically accountable bodies such commissioner would know what he or she was as we have in this country. talking about. I wanted to make my general position clear. I The Convener: I would like to ask about a well- need not make an opening statement because it is known judgment—the Napier judgment, on clear from the questions to which I have listened slopping out. You will be familiar with that that the committee is familiar with the concerns decision. that I have raised. Lord McCluskey: Yes, indeed. The Convener: Thank you for that. From my The Convener: Other witnesses have reading of your submission, it is clear to me that suggested that, if we had had a human rights you argue for a different way of achieving a culture commissioner, we would have had an earlier of human rights. judgment on that case. I have questioned that Although you have said it in your submission, I suggestion quite closely, because I cannot see ask you to put on the record your view on what a why that would be the case. Do you want to Scottish commissioner for human rights would or comment on that example? would not add to existing mechanisms. Lord McCluskey: Let us imagine that we had Lord McCluskey: In a word, nothing. never introduced the Human Rights Act 1998 or brought in the convention. No democratic body The Convener: Okay. That is pretty that I have ever encountered would enact a straightforward. provision to the effect that somebody who was Lord McCluskey: However, if I could add a detained in prison in the conditions, including sentence to that, the reason is that there exist slopping out, that Napier was in should be paid numerous other bodies—not least of which are the £50 per day, which is more than the warders courts—that have responsibility for vindicating looking after him were paid, for the insult to his human rights as I understand them. You have just dignity of requiring him to slop out. It is a piece of heard from one such body. I deal with that general nonsense. The Napier decision is a nonsensical point in paragraph 8 of my submission. I can deal decision. I am not necessarily talking about its with that now, but perhaps it is not appropriate to immediate merits, because if you follow closely the do so. reasoning, which extends to 30 or 40 pages, you go logically from one step to another. However, The Convener: Will you tease that out a wee bit the end result is that people are being paid more? You say that the creation of a human rights compensation totalling £40 million or £50 million— commissioner would add nothing and that there money that should be spent on prison are other ways of promoting human rights. How development, hospitals and schools. It is just a would that be done? nonsense, and no democratic body that is Lord McCluskey: I was the chairman of the accountable to its punters—the electors—would Scottish Association for Mental Health for nine have enacted such a provision. years. I was also the chairman of Age Concern The Convener: As you have said, the courts are and of Fairbridge and I have been involved with getting used to dealing with the European Safeguarding Communities Reducing Offending convention on human rights. One of the powers and voluntary bodies for refugees. All those bodies that the proposed commissioner will have is the are strapped for cash. All of them have particular power to request to intervene in civil proceedings. interest in and knowledge of the complaints and In your view, would such a person add anything to problems of their client base, to use a technical the court procedure? term. It seems to me that the money could be far better spent by helping those bodies to realise Lord McCluskey: No. Who is this commissioner possible solutions to the problems that they face supposed to be? As I point out in my submission, and to take those problems to the right arena. As I the salary is not one that will attract anybody of have made plain, there already exists in Scotland any great quality. That is why I refer to the article an extremely good judicial training body—I cannot in The Scotsman. The two comparable figures are remember its precise name—which had to teach those for the Crown Agent, whose salary is judges, prosecutors and others about human £100,000 to £115,000, plus pension, and for rights. We knew nothing whatsoever about human Robert Gordon, the head of the Scottish Executive rights until about 1998—nothing at all, or almost Justice Department, whose salary is £125,000 to nothing—so bodies were set up to teach lawyers, £130,000. Sheriffs are paid something of the same including judges, sheriffs and prosecutors, and order, and High Court judges are paid more. The those bodies have done an excellent job. The job commissioner will be paid what, in terms of the

100 †210 2539 21 DECEMBER 2005 2540 competition, is a pittance. Of course, it is a large I have just counted 20 such conventions, in sum of money compared with what members of addition to the European convention on human the Parliament earn. rights. We have ratified international conventions on discrimination in education; on racial The Convener: Let us suppose that we could fix discrimination; on discrimination against women; that. We could say, “Okay, let’s try to attract on the rights of the child; on employment; on someone of the calibre of the Crown Agent, and refugees; on torture; on forced labour; on let’s pay £100,000 to £120,000 plus.” If the salary economic, social and cultural rights; and on civil was the issue when it came to attracting the right and political rights. The commissioner will come person, would such a move make any difference into a field that is already huge—the European to the authority or effect of such a person giving convention field—and bring in all these other so- evidence as an expert on human rights in any civil called rights, which are not rights in any legal proceedings? sense. Lord McCluskey: A good example is the Scottish Law Commission or its English Stewart Stevenson: Let me signal the punch, equivalent. Lord Scarman was the initial chairman Lord McCluskey, by saying that I simply do not in England; Lord Hunter held that position in accept your monosyllabic answer as to whether Scotland, where the position has always been held the bill adds rights. I posit the case—unlikely as it by a judge of the High Court, with High Court may be—of my being arrested and held on status and a High Court salary. Those people remand in conditions similar to those experienced carry considerable weight and employ expert staff. by Robert Napier. Unlike Robert Napier, I have If a human rights commissioner were to intervene assets. The Napier case cost—if my memory in a court case, would he or she turn up in person serves me right—around £1.3 million in legal aid, and say, “I’m the commissioner and I want to with an award to Napier of £2,400. With my intervene”? No, that person will instruct counsel— assets, it seems unlikely that I would get the kind a human rights lawyer—who will be paid of legal aid that Napier got; neither am I wealthy substantial fees to appear in court. Such enough to be able to pay the £1.3 million. Would intervention is not necessary. The court can, and not people such as I—the middle class, if you want occasionally does, decide that it needs extra to use the traditional jargon—who can not afford to submissions that are different from those from the go to law and are not impoverished enough to get two parties, in which case the amicus curiae—a legal aid benefit from the creation of the human friend of the court—who is usually an experienced rights commissioner in circumstances such as counsel or solicitor advocate, makes those in which Robert Napier found himself? representations on an impartial basis. Lord McCluskey: I do not really think so. The people who are vulnerable are the aged, the 11:15 mentally ill and ex-prisoners. They can go to mental health organisations—I have mentioned The Convener: You heard the evidence of Alice one substantial organisation—Help the Aged and Brown, I think. Age Concern or, for former prisoners, SACRO and Lord McCluskey: Yes. the Apex Trust. There are numerous bodies to The Convener: She put an interesting case to which vulnerable people can go. us. Her final submission was that she would prefer Like you, I probably could not afford to pay for a to identify the gaps without duplication and to lawyer. On the whole, however, I am not a define clearly the role of a human rights vulnerable person; I am not the person for whom commissioner. However, she suggested that, as these human rights were created. In a real sense, an alternative, we might want to extend the human rights ought to confer legal rights on the powers of the public services ombudsman. Would vulnerable that they cannot otherwise vindicate. that be a better way of getting value for money in Our system permits them to do that. the promotion of human rights? Stewart Stevenson: If I recall correctly, the Lord McCluskey: I am not an expert on that, interim judgment in the Napier case required that but my short answer is yes. The ombudsman the Scottish Prison Service remove Robert Napier already exists and has a good reputation and a from the conditions that he challenged within 72 functioning office. I would prefer an evolutionary hours. What kind of recourse would I have in approach to be taken by developing that office. similar circumstances to achieve a similar There is a general point that it is important that I outcome if there is no one to whom I can have make, which I mention in paragraph 8 of my access at no cost? written submission, on the vagueness of the so- Lord McCluskey: I suppose that, if you have called rights. Section 2(2)(b) refers to the funds, you could seek judicial review. If you do “other human rights contained in any international not have the funds, there is not very much that you convention”. can do, but if you were to go to a body such as the 101 †211 2541 21 DECEMBER 2005 2542

commissioner, it would hardly be likely to act “to encourage Scottish public authorities to comply with within 24 hours. It would not possess the expertise section 6 of the Human Rights Act 1998” or machinery to handle the case rapidly. when, for God’s sake, it is their duty to comply with Stewart Stevenson: I accept that, in law, the section 6 of the Human Rights Act 1998. They remedies, processes and professionals exist and probably have reams of people ensuring that they are available to pursue all the issues but, in are complying with it, so it is a piece of nonsense practice, they are not available in a way that to have a gadfly coming in every few months to tell respects the human rights of people in Scotland, in them that they are not. that they are not equally accessible to everyone. Margaret Mitchell: Your submission has been You have conceded that point yourself in saying refreshing for me. You are clear that there would that you could not afford to employ a lawyer to do not be any added value in establishing a what Robert Napier did, just as I could not. commissioner for human rights, given the limited Although I have yet to be convinced that we need remit that is envisaged in the bill. Would there be to solve that problem in the way that the bill any adverse spin-off effects of creating the post proposes, I am not prepared to accept that the law and appointing somebody with few powers? provides the kind of remedy that removes from the equation the need to do anything more, as you Lord McCluskey: The point that I make in the seem to think. Is my challenge reasonable or submission might not have been clear. In the unreasonable? United States, legislators find that roughly half the people support abortion and the other half do not, Lord McCluskey: There are many ways of so they do not want to get involved. That also trying to vindicate a right—as distinct from, but applies to many other matters, so it has become including, a pure legal right, which can be an unwritten convention that they bat things off to vindicated in a court. I can go to my member of the Supreme Court and let the judges sort them Parliament. I have a problem—I will not go into out. detail—to do with my sister-in-law, who suffers from profound deafness and is in an old people’s There is a sense in which local authorities or home. I wrote to her MP and got an instant reply. other public bodies to which section 6 of the He wrote to the local health authority and things Human Rights Act 1998 applies might bat things are going rapidly and well. There is appropriate off and say, “Well, the commissioner hasn’t raised machinery; that is what MSPs and MPs are for. this point so there can’t be much in it.” I am not They can use the heavy hammer of the saying that the commissioner is a negative thing; I ombudsman if they want to do so. It is also just regard the position as a waste of money. At possible to go to the press. There are 1,000 ways least £1 million will be spent on the commissioner, of bringing attention to what an individual and there are the costs of conducting inquiries and supposes to be a violation of their human rights. joining in litigations. That will lead to snowballing public expenditure on a quango, which I am not in The Convener: You have time for one last favour of, given that there are so many ways of question, Stewart. progressing other than with a quango. I accept Stewart Stevenson: I was going to say “finally”, that establishing the commissioner could do convener. something to improve the understanding and even the achievement of human rights, but it is not a Does that not illustrate, Lord McCluskey, that question of perfection or of filling every gap; it is a there is still a concept of public service—I halved question of whether that is a wise way to spend £1 my salary to come to the Parliament, for million or £2 million a year. preference—and that it might therefore be possible to find a retired judge who would be Margaret Mitchell: I was looking at the part of prepared to supplement their pension by fulfilling your submission in which you address the the role that would be created by the bill, if potential for the gaps to be filled by pursuing passed? political correctness as opposed to real human rights issues, like the ones that you highlighted in Lord McCluskey: That might be possible, but a relation to non-governmental organisations and retired judge either would be, like me, too old to voluntary bodies. Could you elaborate on that? accept the job or, if he was young enough, could be paid much more for sitting daily in a court of Lord McCluskey: I take a close interest in three and saying “I agree” from time to time. human rights in countries where there are no human rights as we understand them. I go to However, the responsibility for vindicating many countries in the former Soviet Union and I people’s rights, if it is not done through the courts, bring people from them here. When we went to lies with the public authorities themselves. It Saughton prison and saw the facilities, people strikes me as bizarre that the Parliament should were flabbergasted by the quality of our prison enact a provision to appoint a commissioner provision—so much so that they thought that the

102 †212 2543 21 DECEMBER 2005 2544 prison was fake and was just for visitors like them. that role, particularly in mental health, with Age However, they became convinced that it was real. Concern and in relation to SACRO. We have to In their hotel the next day, they picked up The give people a voice. One way to do that is to Scotsman and saw that the Executive and the create a commissioner, but will people go to the Scottish Prison Service were being criticised and commissioner? I do not think that they will. They had been found liable to pay damages for tend to go to bodies such as Age Concern, Apex breaches of prisoners’ human rights, at which they or SACRO; indeed, those bodies go to them. If fell about laughing. We have got things totally out you want to give the vulnerable a voice and if you of proportion. Perhaps that is not a clear answer to want to provide advocates for the vulnerable, it is your question, but I do not want anyone to be in far better to send the money to those bodies. any doubt as to which are genuine human rights Almost every organisation with which I was issues and which are matters of political concerned spent a heck of a lot of its time just correctness in my answers. trying to raise money for core projects. All of a sudden, millions are about to be spent on creating The Convener: Before we go any further, I yet another quango full of ill-qualified people with believe that we have some broadcasting ill-defined tasks. Some of those tasks are so wide problems, so I will suspend the meeting until they that one of the commissioner’s duties is to are resolved. “keep under review— 11:27 (i) the law of Scotland, and Meeting suspended. (ii) the policies and practices of Scottish public authorities”. The commissioner may also 11:33 “recommend changes to the law and to those policies or On resuming— practices.” The Convener: I resume the meeting, now that What will the commissioner do on a Friday? the technical hitches have been sorted out. We The Convener: We move on to the subject of have a brief question from Bruce McFee. resources. Mr McFee: Lord McCluskey, you will have heard Mrs Mary Mulligan (Linlithgow) (Lab): We the argument advanced by the previous panel that were going to get to it eventually. I asked creating the figurehead of the commissioner would witnesses last week whether additional resources send out a necessary message on human rights. for their organisations might enable them to What message would it send out? provide the advice and support that we intend to Lord McCluskey: I confess to a reluctance to make available to people. However, they seemed send out messages. Judges are always thinking of reluctant. That may have been because they sending out messages. Some will sit in Kirkcaldy thought that too few resources were being and send out a message to youths about drinking dedicated to the commissioner’s role. If the on a Saturday night, but do they hear it? The resources that are being suggested to support that answer is no. I am not keen on sending out role were divided between the various messages. One should do things, rather than send organisations that offer the kind of support that out messages. I do not see how a human rights you have referred to—be it Age Concern or commissioner would send out a message to whoever—would there be enough to make a anyone. difference for each of those organisations? In other words, we may be in danger of spreading Mr McFee: I will finish with one last issue, which resources too thinly and not providing the support was raised when I asked what the difference that we are seeking to give. would be and what powers the ombudsmen did and did not have, and I was told that they did not Lord McCluskey: I do not think so. In the have the power of advocacy. Would human rights Scottish Association for Mental Health, we be better advocated by redirecting some of the engaged a good lawyer on a part-time basis and cash—if not all of it—involved in creating the we had another lawyer who did a lot of voluntary human rights commissioner to the voluntary work. They put in a tremendous amount of work in sector, so that if Stewart Stevenson finds himself connection with the creation of legislation on so- in a middle-class Robert Napier situation he can called living wills. In other words, if one is working go to an organisation that will take up his case? within a body such as Age Concern, Help the Aged or SAMH, one knows what the problems are Lord McCluskey: That is exactly my point. because they keep coming to you from your client Each of the organisations in which I was involved, base. One can say, “Okay, this is something we usually as chairman—or chairperson I should say ought to look into. How do we do it? We could do nowadays—had an advocacy role. We developed with some money to engage a lawyer, not

103 †213 2545 21 DECEMBER 2005 2546

necessarily full-time, but part-time or on a project Lord McCluskey: The main emphasis of the basis.” One then ought to be able to come here provisions and particularly of section 2 is on and say, “You’ve got a fund available for human convention rights—those that it is local authorities’ rights”—you must have, because you are duty to comply with under section 6 of the Human prepared to spend the money on this item—“Why Rights Act 1998. However, for some reason, not give us access to that fund?” thrown into the bill in section 2(2)(b) are One possible reason why NGOs such as those I “other human rights contained in any international have mentioned are slightly reluctant to take convention”. money for particular purposes is that they do not As I said, I have a list of about 20 such like the money to be ring fenced; they want core conventions, which cover almost everything that funding. There are arguments within those one can think of. Just discovering what those organisations about whether that is a wise stance conventions are is a big task. The book that to take. If we are talking about the vulnerable— contains the conventions is about twice the size of whether it is children; immigrants; women in some the book in my hand—it is not easy reading, I can circumstances; the elderly; the mentally ill; ex- tell you. prisoners; and the families of prisoners—we are talking about a relatively modest number. If we My point as a purist is that we must ask what a think of the lead organisations in each of those right is. I have a right to inherit money if my wife fields—you could name them as well as I could— dies intestate. I have a right to recover damages if there are ways in which one could say, “We’ve got somebody negligently runs me down. I have a fund available to promote the understanding, certain rights in relation to objections to planning realisation and vindication of what are truly human applications. Those are legal rights that I can rights. Would you like to make a case for getting vindicate. Once we move out of the field of legal access to that fund for a year or two?” A chunk of rights and into human rights, which are not legal money could be used to engage the right kind of rights, the rights cannot be vindicated. If someone person to do what is necessary to deal with the says to a local authority or other body that they perceived problem, rather than to engage have a possible right to IVF treatment—which has someone with a duty to review the entire law of been mentioned—that body can say, “Go and boil Scotland and all local authorities’ policies and your head; that’s not a right that we recognise. We practices and to go round just taking up space. as a local authority have no function to spend money on things of that character.” Mrs Mulligan: So you think that targeting a little bit of money in the right way would be more The provisions are extremely vague. I do not productive than wider spending on one individual know what canvas has been provided for the or office. proposed commissioner to write on, which is why I am worried that they will dream up all kinds of Lord McCluskey: If it were known that human politically correct notions and call them human rights money was available, which is what this is, rights that are of the character of those covered by and if a system were devised or an existing an international convention. system were used for some of the purposes, such as training—I mentioned the bodies that train Mike Pringle (Edinburgh South) (LD): You judges—organisations could be asked to pitch for referred to the training of lawyers. Is it adequate? I money for projects. A project might involve finding ask because more human rights cases seem to ways of dealing with elderly people—whether they have been taken south of the border than north of are in hospitals or old people’s homes—who are the border. Are Scottish lawyers reluctant to abused by their carers. That could be similar to become involved in human rights cases? If so, is Age Concern’s elder abuse campaign, of which I that because the training is perhaps not good am still the head. Money could be obtained for a enough or because they think that the subject is project such as that, with a human rights too complex? dimension that ought to be explored and Lord McCluskey: I am surprised that you publicised. should suggest that more cases have been taken Mrs Mulligan: That is clear—thank you. south of the border than north of the border. Marlyn Glen: My question is about your opinion Mike Pringle: Proportionately. of the definition of human rights in the bill, which Lord McCluskey: Do you think so? I am very you have discussed at length. The bill defines the surprised at that. I would need to be shown figures human rights of which the commissioner will have to persuade me that that was true. I do not think a duty to promote awareness and understanding. that there is a lack of education in the public You have referred to the relevant section. Do you sector, but there may be in the private sector. wish to add anything? I talked about the body that trains judges and sheriffs and the body that trains prosecutors. I am 104 †214 2547 21 DECEMBER 2005 2548 not sure whether they are the same body or Lord McCluskey: I hardly need answer that. If whether they just share personnel. Such people people are given 14 days’ notice of an inspection, are trained in human rights and in how the 1998 things are going to be tickety-boo by the time the act applies. Videos, books, pamphlets and commissioner arrives. courses are provided, which are valuable. I do not Mike Pringle: That was our view; I was know what is done in the private sector, but I have wondering whether you concurred with it. not detected a lack of spirit among private lawyers to raise human rights questions. Lord McCluskey: I thought that you were referring to paragraph 2 of schedule 3, which One interesting fact, which has never been refers to studied, is that, when the 1998 act was passed, its explanatory memorandum put the financial cost of “A person (other than the Commissioner) entitled to the legislation at about £12 million. That failed to exercise any power under section 8(1)”. take into account the fact that it was going to cost I can find no such person in the bill. I think that the courts hundreds of millions of pounds in time there has been a drafting error there. I can find no spent considering human rights cases. In the first provision in the bill that entitles anyone other than few years after the 1998 act came into force, the the commissioner to exercise any of the powers, work of the court of criminal appeal almost except perhaps the deputy commissioner. doubled. It is tailing off to an extent, as things become clearer, but there is an immense cloud, as Mike Pringle: We will consider that point with it were, surrounding human rights, and an interest. immense amount of money has to be spent in the Lord McCluskey: I think that it is a drafting courts to deal with that. matter. There are one or two drafting points in the bill. 11:45 Mike Pringle: I was interested in your comment Mike Pringle: Let us assume that we appoint a that the commissioner was going to have an awful commissioner for human rights. One of the things lot to do. My thoughts were that, if the that the bill does not do is give the commissioner commissioner was investigating all the things that at least those enforcement powers required to you mentioned, he might well have a full-time job bring test cases or to support other people in to do. I had been wondering whether he would doing so. If, or when, the bill goes through, should have enough to do. the commissioner have enforcement powers? Lord McCluskey: That is the other view. If the Lord McCluskey: I have not thought about that Scottish public services ombudsman, Scotland’s deeply. It is probably not necessary. The real commissioner for children and young people and instrument of getting things done in this country is various UK bodies all say, “This is my patch, so publicity. If the commissioner for human rights keep off,” it may be that the person who is trying to exists and they can cause an inquiry to be justify the existence of the new body will be conducted and publish the results of that inquiry, scrabbling around producing all kinds of politically that will get into the press. Members of Parliament, correct notions under the banner of human rights. members of the Scottish Parliament and local Mike Pringle: So perhaps we could appoint a councillors will pick the matter up and ask what is retired judge who would work two days a week for being done about it. There need not be a formal £75,000. Do you think that that would be more legal sanction such as imprisonment, contempt, cost-effective? fines or damages. The instruments of publicity are probably sufficient. Lord McCluskey: It might be. I do not know who you have in mind for the post—but I will leave Mike Pringle: One small issue that has been you my card. [Laughter.] raised relates to schedule 3, paragraph 2. Let us again assume that the commissioner has been The Convener: We will not suppose that this is appointed. I am sorry; I gave the wrong reference. an interview. You have an interesting technique if I will read from the top of page 17 of the bill. It you are after the job, I will say that. says: You are right to point out that most of the human “Notice of intention to exercise the powers must be given rights issues that are debated in the Parliament by the Commissioner to the person having management and beyond tend to deal with vulnerable groups and control of the place no later than 14 days before the day on which the Commissioner intends to exercise the and other groups that require equality in the eyes powers.” of the law, but human rights go beyond vulnerable groups, although we might say that all groups are That is about inspecting places of detention. vulnerable to some extent. I believe that the legal Before the commissioner goes to a prison, he aid fund has tested more than 300 ECHR cases, must phone up and say, “By the way, I’ll be which have ranged from the right not to incriminate coming in a fortnight. Is that okay?” 105 †215 2549 21 DECEMBER 2005 2550

oneself, to delay in the courts. The decisions on moment, I can’t do that because section 6(1) says those cases would apply to any accused in any that I’m not allowed to question the findings of any criminal trial. Do you accept that the legal aid fund court.” has tested whether procedures comply with the There is a contradiction between section 6(1) ECHR on behalf of all Scots? and section 3. The more that I look at the bill, the Lord McCluskey: Not only is the legal aid fund more superficially drafted it appears to be. I hope valuable, but it has been held in a case in that I do not offend an old friend by saying that. Scotland—the Granger case—that legal aid must The Convener: Are you pointing out the be made available to people who are being contradiction, rather than expressing a view about prosecuted by the state because of the principle of whether that is the right policy position? equality of arms, according to which, if the prosecution has policemen and paid prosecutors, Lord McCluskey: Yes. In other words, could the the defence ought to have something similar. commissioner, having discovered the Napier case, question it on the ground that the damages ought The legal aid fund does a good job, but the point to have been not £50 a day but £100 a day? that was made earlier about the middle classes Would that be questioning the finding of the court? not being able to afford to go to court is very real. That is why the people who are most liable to be The Convener: I would think that it would be. I able to vindicate their rights using the legal aid would think that section 6(1) is designed to ensure system are those with the least money, which is that the human rights commissioner could not why the Napier case was able to get off the question Lord Bonomy’s decision on the Napier ground. One does not earn a lot of money in case, however he arrived at it. That would be right. Barlinnie or in Edinburgh prison at Saughton; it is It would be very dangerous otherwise. not a highly paid job even for the warders, and certainly not for the prisoners, who will qualify Lord McCluskey: In that case, how could the financially for legal aid. However, if a member of commissioner recommend changes to the law of Scotland if the Napier judgment is—as it is—the the working classes of whatever status tries to vindicate their civil rights, they will not be able to law of Scotland? There is a contradiction between get legal aid at all, because the money is not the two sections that I quoted. available. The Convener: The Napier judgment is the law Legal aid is another instrument for the only in that case. I cannot think of any legislation vindication of rights, although it is not universal. that— However, you are right that, if a right is vindicated Lord McCluskey: With all respect, the law that in the court, it is available to all, because all such is contained in the Napier judgment is the law rights are available to everyone. applicable to all people who fit into the broad Napier category until it is changed, and it will not The Convener: I will go through some concerns that you raise at the end of your submission. I start be changed, because the Executive chose not to with your third bullet point, which asks: appeal the merits of the decision. “What is meant by ‘question’ in Clause 6(1)?” The Convener: But we would not be legislating for that specifically. We would be complying with Section 6(1) says: the court decision. The Executive is attempting to “The Commissioner may not … question the findings of do that now by setting aside a sum of money that any court”. it thinks will equal the costs for which it will be liable for those who fit into the Napier What are your specific concerns on that point? circumstances. Lord McCluskey: Although section 6(1) says: Lord McCluskey: However, I make the point “The Commissioner may not … question the findings of that it is the law. It seems to me that there is a any court or tribunal”, conflict between the denial of the right to question if we turn back to section 3, we see that it says: and the duty to recommend changes. “the Commissioner— Mr McFee: On the point about the Napier case, a more likely scenario is that the commissioner (a) must keep under review— would say, “Wait a minute. I still think that that is a (i) the law of Scotland, and … breach of this man’s human rights.” (b) may recommend changes to the law”. Lord McCluskey: That is a better example. It seems to me that it will be tough for the Mr McFee: Under the bill, the commissioner will commissioner to keep the law of Scotland under be able to recommend changes to the law, policy review because, when they are about to or practice, but they may not challenge the law, recommend changes, they might say, “Wait a policy or practice.

106 †216 2551 21 DECEMBER 2005 2552

Lord McCluskey: It is just that the word The Convener: I think that it qualifies as the “question” is such an amorphous word. It is a smallest document that we have seen so far. minor drafting point. Finally, you raise a concern about whether it is The Convener: In your submission, you ask: appropriate to allow a member of the House of “What rules (if any) of Evidence are envisaged under Lords to hold office as the commissioner or deputy clause 7 especially 7(3)?” commissioner. Why do you think that that might not be appropriate? Section 7(3) states:

“The Commissioner may, in the course of an inquiry, take 12:00 into account any evidence, information or document which the Commissioner has obtained”. Lord McCluskey: I was just raising the question. I hoped that it had not been missed. It Are you concerned that we have not defined what probably would be appropriate. I have been in the evidence we are talking about? Is the provision too House of Lords for a long time, but in recent years broad? it has become the practice to put people of real Lord McCluskey: When it comes to the field in merit into the Lords and it would be a pity to waste which I have been operating for the past 56 them by saying, “You can’t do this job because years—the law—I know what evidence means. you’re a member of the House of Lords.” There There are books about it and there are rules. The are some quite good people in there, despite court decides what is evidence and what is not. appearances to the contrary. That is a judicial decision. I do not know what is Moreover, can the commissioner take part in covered by the words “evidence, information or proceedings in the House of Lords or the supreme document” in section 7(3). Does it cover hearsay court? After all, if the commissioner is to be evidence? Does it cover evidence that was allowed, at the court’s invitation, to take part in obtained by torture? As far as I am aware, not proceedings of the Court of Session, he or she much torture goes on in the local authorities of ought to be allowed to go to the House of Lords. Scotland, but I am not sure what is covered. There The Court of Session and the High Court decide is no indication of any limit on the applicable rules. what the law is, but the House of Lords decides to Is corroboration required? If the finding is that a much greater extent than we appreciate what there is a breach of human rights because the law ought to be. In that sense, it is a quasi- someone has committed a quasi-criminal or legislative body, because it examines fundamental criminal act, how will that be established? Can the issues and makes judgments on any conflict of commissioner take account of hearsay or principles and it is the place where people who information from various other sources? have a deep concern about human rights ought to The concept is ill-defined. That is the trouble be listened to. Indeed, that is why, in its with all the human rights stuff. The ECHR is only consideration of the Pinochet case and the torture four pages long—it is a few hundred words—but it case, the House of Lords invited bodies to make has created a vast so-called jurisprudence of case representations from their standpoint. That law. Thousands of decisions by the court and the evidence assisted the court. Of course, that is an Commission have amplified the rules, but they are old tradition in the United States Supreme Court. made by judges and others with no accountability. The Convener: That is helpful. That is my worry about the human rights scene. We have no further questions—in fact, we have The Convener: I believe that Stewart run out of time. Would you like to make any Stevenson has a document that is even smaller concluding remarks? than the ECHR. Lord McCluskey: No. I thank you for inviting me Lord McCluskey: What is that? to give evidence, although I am not really sure why The Convener: Is it the European Union I am here. After all, I am just an individual, fundamental freedoms? although I have been interested in this field for a long time. Stewart Stevenson: It is the Charter of Fundamental Rights of the European Union, which I repeat the point that I made at the beginning: I was passed at Nice on 7 December 2000. am totally in favour of human rights. That said, when I talk on this subject to people around the Lord McCluskey: Oh, that document. Yes, that world, I try to persuade them to use the term “legal is another one. rights”, not “human rights”. After all, if you have a Stewart Stevenson: Conveniently, it is vest right, you have something real that can be pocket sized. properly vindicated in a court of law. However, something that is vaguely described as a human Lord McCluskey: It goes beyond the ECHR in right is much less real and less valuable to people. some respects. 107 †217 2553 21 DECEMBER 2005 2554

The Convener: Thank you for attending this Mr McFee: I understand that your expertise lies morning’s meeting and for providing a written elsewhere but, given what you know about the submission. We are very grateful for your very Scottish context and having read the bill, would clear and straightforward views. It always helps to you find it easy to identify where the space for the have witnesses who speak their mind. However, if commissioner is? we decide to take your points on board, we might Dr Murray: I think so. Although people focus on have to answer to the Finance Committee for any the Paris principles and say that human rights recommendations on uplifting the commissioner’s commissions and commissioners should have as salary. broad a mandate as possible, that does not Our final witness this morning is Dr Rachel necessarily mean that we should go through all Murray of the University of Bristol. I thank Dr the Paris principles and tick them off one by one. Murray for agreeing to switch her position in the Each commission has to be context specific and evidence taking to allow Lord McCluskey to leave we have to consider what is necessary and at 12 o’clock. We are also very grateful for her relevant for each jurisdiction. clear and helpful submission. As ever, we will The UK context of the development of a move straight to questions. commission for equality and human rights through Mr McFee: You will have heard Lord the Westminster Equality Bill means that what is McCluskey’s evidence. In Scotland, a plethora of happening in Scotland has a different dimension. If organisations protects people’s rights and, on top there are gaps that the Equality Bill does not fill of that, there are various pressure groups, trade and there is a risk that Scotland will be left out of unions, lawyers and so on. In your submission, the loop, there will be a role for the Scottish you say that human rights institutions have to find commissioner in addressing that. a space, but do you think that there is a space in Mr McFee: Right. On the basis of your study of Scotland that needs to be filled? the Northern Ireland Human Rights Commission, Dr Rachel Murray (University of Bristol): It is what do you think makes an effective commission very difficult for me to comment specifically on or commissioner? Scotland, as I do not live here and do not have Dr Murray: Too often there is a focus on one intimate knowledge of the Scottish system. specific issue. A combination of factors makes an However, from my consideration of human rights effective human rights commission or commissions in the UK, Ireland and abroad, I do commissioner. First, there is the capacity of the not think that it is necessary to establish a human commission and the context in which it was rights commission or commissioner just for the established. That relates not only to the powers sake of it. They have to play some role or fill some that it was given in legislation but to the extent to gaps that are not already filled by existing which it had political support when it was statutory or constitutional bodies, voluntary sector established and whether political parties, such as bodies, the judiciary, the media and so on. the Government parties, see it as their baby and Picking up on points made by previous are happy to support it in its work. How the witnesses, I think that human rights commissions commission fits in with the other statutory and commissioners elsewhere play an important agencies in the jurisdiction is also important. role and have an impact by acting as a focal point Secondly, the effectiveness of the institution is to for human rights and providing a first port of call do with how it performs, which can depend on a for people who might not associate human rights number of factors, such as its remit and powers. with the ombudsman or other statutory and Regardless of the extent of its powers, a key factor voluntary agencies. is how strategic it is. A commission will need to However, some human rights commissions and adopt a strategic approach. In some respects, commissioners elsewhere have found it difficult to human rights cover everything—everything can be carve out a niche for themselves, particularly a human rights issue—and giving a body the label where their remit is broad and where a number of “human rights commission” can raise expectations other statutory or constitutional bodies exist. It that it will cover a range of issues. Human rights might be easier for a commissioner to carve out a commissions cannot do that; they have to be niche in the Scottish context, because, given that strategic and focused and identify a number of other bodies are already established, they will be priorities. The ones that have done that are likely able to see how they fit into the gaps and their to have more of an impact and be more successful remit might be defined more precisely in the bill. In than those that try to do everything. contrast, the South African Human Rights Finally, the legitimacy of the institution and how Commission was established around the same it is perceived by others is incredibly important. time as other constitutional bodies with a remit in That relates to how it was established, how the human rights, so finding a space for it amid all commissioners are appointed, whether the those other institutions was more problematic. 108 †218 2555 21 DECEMBER 2005 2556 appointments process is transparent, who investigate individual cases. Lord McCluskey has appoints the commissioners, who is appointed to forcibly put it to the committee that, by and large, the posts and whether they fit the commission’s the law provides for appropriate remedies, mandate. although he qualified that later by agreeing that neither he nor I could afford to invoke the law. Is Stewart Stevenson: The Scottish commissioner the situation different or similar in Northern will be able to investigate only public authorities. Is Ireland? How would you say things pan out there that likely to be adequate or does your experience in that regard, given your experience? of the Northern Ireland Human Rights Commission suggest that the remit should be wider? Dr Murray: As far as the casework is concerned, the powers of the Northern Ireland Dr Murray: As I said initially, a balance needs to Human Rights Commission are broader than be struck. In some respects, the human rights those contained in the Scottish Commissioner for commissions that have been given a very wide Human Rights Bill. However, the impact that the remit are finding it difficult to act strategically and Northern Ireland Human Rights Commission’s to focus on particular issues. Those that have casework function has had could be described as been given a more narrow remit, on the other a mixed bag. The commission has supported the hand, are more focused in their attention. carriage of cases through the courts. Solicitors or The width of the remit also depends on the others will approach the commission for jurisdiction. The question that arises in Scotland is assistance and support, rather than the whether private, or non-public, bodies are already commission having full control over cases. It can adequately covered by other institutions, or sometimes be difficult to appreciate the impact whether a gap still needs to be filled. In other that the commission has, as its work is not jurisdictions, one way to assess the legitimacy of a necessarily all that visible. human rights commission or commissioner is by There was a high-profile case in Northern examining the existing statutory or similar bodies, Ireland that established the ability of the Northern ascertaining whether they have similar powers, Ireland Human Rights Commission to intervene in resources, functions and so on and then making a the courts as a third party. That was possibly a comparison. The powers and resources of the high-profile case for the wrong reasons, as it did Northern Ireland Human Rights Commission were not establish a point of human rights law but often compared with those of the Equality related simply to the commission’s powers. Commission for Northern Ireland, and the Human Rights Commission came to be seen as second The Northern Ireland Human Rights best. That had an impact on how those in the Commission has been seen as having some commission felt they were perceived by the impact in its involvement in cases involving the Government and on how much support they felt European convention on human rights and the they were getting from the Government. Some European Court of Human Rights. The people saw it as being a less important body than commission is treated with a great deal of respect the Equality Commission. Such factors need to be in those cases. However, it is not always easy to taken into account in deciding whether the remit of see clearly what the impact of the commission has a new body should cover private or public bodies, been. That might be partly due to the restrictive or both. approach that the courts initially took to the role that the commission could play. Another issue, which perhaps cuts across some more private aspects, relates to economic, social and cultural rights. This feeds into some of the 12:15 points that the previous witnesses have It is also worth pointing out that if a human rights commented on. Commissions that are able to deal commissioner does not have the power of with economic, social and cultural rights are litigation, that can have an impact on the way in sometimes seen as being more accessible to the which it is perceived. For example, the South public. People can identify more with health and African Human Rights Commission has extensive education issues than they can with some of the powers of casework, litigation and so on, but it other, so-called traditional human rights issues. does not use them often in high-profile cases. It That was certainly a factor in Northern Ireland, and withdrew from a treatment action campaign case it was relevant to the extent to which the Northern involving the provision of drugs to pregnant Ireland Human Rights Commission was prepared women who are HIV-positive—it was criticised to deal with those sorts of rights. That seems to heavily for its failure to be involved in that case. have been key to the commission’s legitimacy and There is a risk that the public will not know that the accessibility to the public and to the jurisdiction commission does not have the power of litigation that it serves. but will think that it is choosing not to use its Stewart Stevenson: The proposals for the power. People expect such bodies to be involved Scottish commissioner exclude the ability to in high-profile cases and, if they are not seen to be 109 †219 2557 21 DECEMBER 2005 2558

involved, that can lead to a lot of criticism of the Scotland, so is South Africa the best example? institution. Can you infer from the South African experience that if the Scottish commissioner had the power to Stewart Stevenson: My question is a more investigate individual cases, they would be workaday one. I accept what you say about swamped? I am finding it hard to make a direct perception, but I want to focus on reality. By comparison between the situation that existed in denying the commissioner the right to intervene in South Africa and the situation that exists today in individual cases, we might leave a gap and certain Scotland. individuals might have no effective remedy. In other words, the bill will add nothing for those Dr Murray: I understand the point that you are people. Does the Northern Ireland experience making. A balance has to be struck—that applies illuminate that question for us in Scotland? in Northern Ireland too. One of the key points about a commission is that it has to be strategic Dr Murray: I do not know. That depends on a and selective in the rights or themes on which it number of factors, including the other possibilities chooses to focus or, if it has a casework function, that exist in the jurisdiction to enable individuals to the cases that it chooses to take. It has to balance get the remedy that they need. The power to being accessible in opening the doors, setting up intervene in cases needs to be balanced against helplines and allowing people to approach it to what happens if the commission has a shopfront take cases with being strategic. That applies in and anybody can request the commission to take Scotland as much as it does in South Africa and on a case. That is the situation in South Africa, Northern Ireland. where people can go through the doors— particularly of the commission’s provincial Mike Pringle: You might have covered this, but offices—to ask for assistance. Where that is I want to clarify the point. The Scottish allowed, commissions can be swamped by a huge commissioner will be able to intervene in civil court number of cases, some of which might not be cases brought by others, where she is permitted to relevant to their mandate. It is relatively easy to do so. In Northern Ireland, can the commissioner phrase anything as a human rights issue, but the go to court on behalf of others, or on his own commission has to identify a strategic approach to behalf? The bill states that the Scottish its work and litigation can be more problematic. If commissioner can intervene when asked to do so we allow everyone to approach the commission by the court, but not otherwise. and we tell them that it might support their case, Dr Murray: Yes. The commissioners in Northern we will raise expectations of what the commission Ireland can go to court on behalf of others as well can achieve. That might not be an appropriate way as being able to intervene. to go. Mike Pringle: My next question is about the Stewart Stevenson: You used the South relationship that the Scottish commissioner will African example to illustrate the issues and you have with the courts. There is a fear that the discussed the tension between strategic and commissioner will not be as well placed to address tactical approaches. You used the phrase “can be human rights as are members of the judiciary. swamped”. Are you saying that the danger of Have you found that to be the case in Northern human rights commissions being swamped with Ireland? cases is not just a theoretical danger but something that happens? Do you think that, in Dr Murray: That depends on what the judiciary considering the proposal for Scotland, we should sees as its role in human rights protection and, to take account of that? a certain extent, promotion. In Northern Ireland there was a perception that the judiciary was not Dr Murray: Yes. There is evidence that the particularly supportive of the commission or of commission in South Africa—particularly in its human rights. In contrast, in countries such as provincial offices around the country, which are South Africa, the judiciary was crying out for the more accessible than its headquarters—feels commission to bring cases to it, to become more swamped by a variety of cases over which it does involved and to litigate, which was not necessarily not feel that it has any jurisdiction. If one wants a happening previously. Whether a human rights commission to be accessible, one needs to commission or commissioner will fit any gaps will examine the other powers that it should have, depend on the context, how much the judiciary such as powers of mediation. In the South African takes on board human rights standards in its work context, that is important. If a commission is to and how proactive it is in that regard. deal with people who come in from the street to ask for advice, it needs a mediation role. Mike Pringle: You heard me ask Lord McCluskey about the 14-day notice period. Does Mr McFee: Are you saying that you can make the commissioner in Northern Ireland have to give practical comparisons with the South African 14 days notice before he visits a prison? experience? In South Africa, there are not as many bodies that people can go to as there are in 110 †220 2559 21 DECEMBER 2005 2560

Dr Murray: Not that I am aware of. The 14-day means that there must be a degree of notice period struck me as long and, as others representiveness among the individual have said, it provides the opportunity for things to commissioners, which, as we have seen in be changed or moved around. I am not sure what Northern Ireland, can lead to huge problems in the notice period is for the European Committee working out what a representative commission for the Prevention of Torture and Inhuman or might consist of. For example, should the Degrading Treatment or Punishment, but I think commission in Northern Ireland represent only the that it is shorter than 14 days. The European two main religious communities in the country or committee might provide a useful model in relation should it cover the Chinese community? Should it to visiting places of detention and giving notice. comprise an equal number of men and women? Should the representation take account of sexual The Convener: I call Margaret Mitchell. orientation? Such hugely difficult issues can result [Interruption.] in a body coming under a huge amount of Margaret Mitchell: Sorry, that is my phone—I criticism, which can impact on its ability to gain know that I have it in my bag somewhere. respect and legitimacy before it has even got off the ground. To an extent, some of those difficulties Mike Pringle: Just kick it. can be avoided by having one named individual. Mr McFee: Do you know the words to that tune? If the jurisdiction is small, a disadvantage of Mike Pringle: Just stamp on it. That will turn it having a commission rather than a single off. commissioner is that the pool of candidates from which commission members and staff can be Margaret Mitchell: I was asking a question taken is small. As a result, it might be useful to when you asked whether we had switched off our have one individual commissioner instead of a phones, convener. Sorry about that. group of commissioners. One model does not Dr Murray, for clarity, will you outline exactly necessarily fit all; you have to consider the context what is in place in Northern Ireland with the of what you are trying to achieve. commission and commissioners? Margaret Mitchell: What would be the pitfalls of Dr Murray: Do you mean their general powers? having a single commissioner who would be the commission’s public face? Margaret Mitchell: Just the structure. Dr Murray: One interesting question centres on Dr Murray: In Northern Ireland, there are a the role played by the commissioner, rather than number of commissioners as opposed to just one by his staff. Indeed, the issue is confused if there commission, although the chair of the commission are deputy commissioners or part-time is the only full-time commissioner, as it were; the commissioners, or if the commission is made up of others are part-time. The commission’s mandate a mixture of part-time and full-time commissioners. combines a variety of powers of protection and Often, that aspect is not properly teased out in the promotion, which covers education and awareness legislation that sets up the commission and, raising. Moreover, although the commission has indeed, beyond that. The presumption is that the dealt with the bill of rights process in a commissioner or commissioners in general will be controversial way—indeed, it has not yet the commission’s public face. If so, they need to concluded the arrangements—it has not only the have experience of and be au fait with working in casework function that we have been discussing such a public forum, with the media and so on. but an investigation and research function. Moreover, they also need to be comfortable with However, it has had no powers to demand working in a very political environment. A special documents, call witnesses or compel evidence, element of a human rights commission that can although the Government has suggested that it add value is its status as a semi-official body; as a might change the legislation to allow that. result, it should operate on an inside track with Margaret Mitchell: Although the consultation Government and other official bodies in a way that paper on the bill set out proposals for a the voluntary sector cannot. commission, the published bill proposes the However, you need a commissioner who is both establishment of a commissioner. What are the comfortable with that position and able to maintain problems and advantages of having either a a degree of integrity and independence. For commission or a commissioner? example, although someone who has previously Dr Murray: The problem with having a acted in a political capacity might be comfortable commission instead of a single commissioner is with the situation, they might find it difficult to that in some jurisdictions it can be difficult to reach maintain their independence in the position. agreement and consensus among commission Margaret Mitchell: Does the representation of members. Indeed, having individual the commission in Northern Ireland cover commissioners in a group called a commission voluntary and non-governmental organisations? 111 †221 2561 21 DECEMBER 2005 2562

Dr Murray: The commissioners come from a rights issue might write a letter to the human rights variety of backgrounds, including civil society. commissioner asking them to say something about it. I am a bit concerned about what you are saying. Margaret Mitchell: Is there an overarching What should the mechanism be for the requirement to ensure consistency? I believe that, commissioner to determine what areas they will in that respect, you highlight paragraph 5(1) in promote, given that human rights are so broad? schedule 1 to the bill, which refers to an acting How would that work? commissioner who steps into a vacancy. Dr Murray: Are you asking how the 12:30 commissioner would decide what their strategy Dr Murray: Yes, I think that there is such a and priorities would be? requirement. From looking at other commissions The Convener: I presume that the existence of elsewhere, we know that one thing that has an a human rights commissioner might provoke impact on the way in which a commission is groups and individuals who think that certain perceived by others and the degree of respect that matters are questions of their human rights to ask it receives is whether the commission acts as a the commissioner for a view or a statement on a body. It needs to ensure that everyone—whether matter. How would the commissioner determine the commissioners, if there are a number of them, what to choose as a serious human rights issue? or other staff who act as the commission’s public face and speak on its behalf—speaks with one Dr Murray: Considering the way in which other voice rather than coming at issues from different commissions have dealt with drawing up a perspectives and at different angles. They might strategic plan, I would say that it needs to be done do that in their capacity as individuals but, when early on in the body’s history. If the commissioner they speak on behalf of the commission, they must is going to be accessible and take calls from the act as one. public or allow people to come in through the doors, they need to give out a clear message Margaret Mitchell: In previous evidence, you about how they will do that and to be clear suggested clearly that there should be a strategy internally about how such approaches will be to manage tensions, sort out the various roles and processed. If the commissioner is going to set up minimise any conflict. Should there be something a helpline, they need to make it clear to individuals in the bill to strengthen strategic planning? From that they might not necessarily assist callers, but what you have said, I take it that such a strategy might pass on their information to other statutory would be essential to the smooth running and or voluntary bodies that can assist them. success of the commissioner’s work. Such decisions can be made only when the Dr Murray: Having a specific section in the bill commissioner and the staff sit down together to to say that the commission or commissioner consider their jurisdiction and powers, to should be required to adopt a strategic plan would determine the gaps and to set the priorities on certainly help. It might also be useful to include which they will focus for a certain number of years. provisions in the bill to give the commission some They need to be honest about the fact that they time to be established before it is formally cannot do everything. One of the mistakes comes launched. A huge amount of attention is paid to when commissions sell themselves as the be-all the early months and years of such a body and and end-all of human rights. No commission will there are huge expectations of what it can be able to achieve that, even if it is the only body achieve. Such bodies need time not only to that deals with human rights. The commission has appoint staff, but to let them get to know each to figure out where it fits in and what it can add, so other; to set out their strategy and priorities; to its priorities and strategic plan must be thrashed explore how they fit with other existing bodies; and out early in its existence. In doing that, the to draft memoranda of understanding with other commission must consider the powers that it has institutions and bodies. It might be useful to do and the other bodies from which it can feed. that slightly out of the media and public spotlight so that, when the commission is launched The Convener: Should the commission’s plans officially, there is a clear indication of what include the way in which it will deal with inquiries? people’s roles will be rather than those ideas being For example, a group that campaigns for thrashed out under the pressure of expectations something that it thinks is a human right might ask and hopes for what the commissioner will achieve the human rights commissioner for a statement in in the early months. support of its campaign. Should the commissioner have a policy about the way in which they deliver The Convener: Given your knowledge of such opinions? human rights commissions throughout the world, I will ask a few questions about how they work. An Dr Murray: Yes. It is important for such policies individual who thinks that their right to be in a to be drawn up in advance. The commissioner will trade union or their right to smoke is a human need a strategic plan with a number of policies 112 †222 2563 21 DECEMBER 2005 2564 that feed off it. One of those policies should set out is to work as effectively as possible. First, it is the way in which the commissioner will interact useful to give the commission or the commissioner with the media—that is, it should contain a the opportunity to liaise with Parliament in a communications strategy and a media strategy. number of ways, so that there are regular That policy will be a key element of the exchanges and debates with Parliament. Those commissioner’s profile and of the way in which ways could be outlined in the legislation. they are perceived by others in society, including Secondly, the process should involve more than people who might want to approach them. It is simply laying an annual report before Parliament. important for that to be worked out early on Members of the Parliament who have knowledge because it can make or break a commission. of, and expertise in, what the commission or The Convener: The bill proposes a commissioner does should have the opportunity to commissioner and up to two deputy debate reports in a meaningful way. In other commissioners but no committee. Should those jurisdictions, parliamentarians sometimes do not three people decide what the priorities in the area have enough time to read the commission’s of human rights should be? documents; indeed, they are sometimes not aware of what the commission does or what it can do. Dr Murray: The strategic decision making Sometimes, rather than testing what the should be the job not of the commissioner but of commission has done and so on, parliamentarians the body as a collective, including the chief ask questions that are led by their political executive and the staff. They should all be affiliations. Carefully considering to whom a involved. That takes us back to the question of commission or commissioner will be what a commission is. Is it just the public face of accountable—specifically in Parliament—whether the commissioner or does it make policy? To what there should be an additional committee and the extent should the commissioner get involved in the remit and composition of that committee can be daily work of the commission? Will it be left to the important. staff to implement the commissioner’s ideas? If the commissioner’s role is set out clearly at the start, Parliament must achieve a difficult balance in its that will help to deal with some of those tensions role of making a commission accountable. On the and it will help to identify which staff need to be one hand, it should ideally support a commission appointed and what other expertise is needed. and give it visibility. A commission will obtain a certain amount of credibility as a result of The Convener: Should the bill or the guidance interacting with Parliament, being tested by it and specify the way in which the commission is having its work supported by it. On the other hand, expected to determine its priorities? I do not know Parliament must test what a commission has done how many members of staff will be needed to run and question it on matters such as its use of the organisation, but the number will not be huge. I resources and how it has spent its money. That like to think that the commission will be required to can take time and lead to tensions between the canvas people’s views or to do a survey before it commission and the committee that is involved. determines its priorities. Should that requirement The role can be difficult. Parliament should be be included in the bill or in the guidance? supportive, but it should also question. Dr Murray: I do not think that you need to be Marlyn Glen: You are talking about ensuring prescriptive about the way in which the that a commissioner retains independence but is commission should set its strategic plan. One of also accountable. Is there any best practice to the proposals in the Equality Bill is quite which you can point us? prescriptive—it says that the commission should consult widely and so on—but it might be sufficient Dr Murray: Opportunities for regular interaction to state that the commission should adopt a with Parliament are the key. The process should strategic plan early in its existence. That would involve more than simply laying reports. There give the commission the independence to should be a meaningful way of debating the determine the way in which it wished to do that. content of what the commissioner presents before Parliament and careful consideration of the Marlyn Glen: My question is about the Scottish composition of the parliamentary committee that commissioner’s accountability to the Parliament. In will deal with the commissioner. The backgrounds your submission, you make a number of and knowledge of that committee’s members suggestions about how to ensure that the should be considered. relationship between the commission and the Parliament operates effectively. Will you outline Mrs Mulligan: Your written submission deals and expand on those suggestions? with funding and staffing. I understand what you have said about identifying a sum of money for a Dr Murray: It is often stated that such a body commissioner or a commission while allowing should be accountable to Parliament, but we need daily expenditure to be decided by those involved. to recognise a number of things if the relationship I think that we would accept what you suggest. 113 †223 2565 21 DECEMBER 2005 2566

You will be aware that we have identified that £1 suitable, but a balance must be achieved to avoid million will be needed to support the Scottish being too prescriptive, as the notes say. commissioner for human rights. In the light of your It is often helpful in legislation to have the experience of what happened in Northern possibility for a commissioner to review their Ireland—I understand that further resources are powers and resources in the not-too-distant future. already being sought there—do you think that £1 In Northern Ireland, it helped to have a stage two million will be sufficient for the model that the bill years on or four years on at which the body could envisages? say what had and had not worked, what amount of Dr Murray: Identifying a clear pot of money that money was adequate and so on. If legislation will be required is difficult. One concern that has could provide for at least an automatic regular been raised in Northern Ireland is control over the review, that might help. number of staff who are appointed. The bill as it Mrs Mulligan: I have a final question that it may stands does not put that matter in the hands of the be unfair to ask you. Our previous witness, Lord commissioner. In Northern Ireland, the McCluskey, suggested that it might be better to Government agreed to remove the provision give the funding to established organisations to relating to staff numbers as opposed to the fulfil the role. If we used the £1 million in that way, provisions relating to conditions of employment. It would that be a viable way in which to meet the has been accepted that such a control puts too need, or is having a commissioner better value for much of a restriction on the commissioner. money? Comparable bodies within the Scottish Dr Murray: That depends on the gaps in the jurisdiction should be considered. I spoke earlier jurisdiction that need to be filled. Directly about the Northern Ireland Human Rights comparing voluntary sector organisations with a Commission’s resources being compared with body such as the commission does not always those of the Equality Commission for Northern work. A key part of such a body is its semi-official Ireland and there being a big disparity in the status: it acts on an inside track with, but funding that was provided. One reason for that independently from, the Government and it works was historical, but it created a sense of hierarchy closely with, but independently from, civil society. in the perceived importance of the bodies. That We would expect such a body to have more clout needs to be taken into account in funding. Funding with the Government, because of how it was must match the commissioner’s remit and established. In that sense, using money to mandate, but whether it matches the budgets of establish such a body may provide more added similar statutory bodies in the jurisdiction must value than would be the case if the money were also be considered. simply given to voluntary sector organisations. However, that will depend on whether a 12:45 commissioner can fill gaps. Mrs Mulligan: So you think that it would be more appropriate to compare the funding that is Mrs Mulligan: That is helpful—thank you. allocated to bodies in Scotland than to compare Margaret Mitchell: My question is on the same the commissioner in Scotland with the subject as Mary Mulligan’s. In discussing the commissioner in Northern Ireland or South Africa. strategic plan, you said that the commissioner’s Dr Murray: You need not choose one or the office would sometimes need to staff up if other option; that is just one issue that needs to be particular expertise was needed, which would taken into account. It is difficult to compare the have a resource implication. I return to Lord money that commissions have, because they have McCluskey’s point: would it be better to use non- governmental organisations such as Age Concern different mandates, compositions, staff numbers, st strategies, focuses and priorities. The decision and Children 1 , which have expertise, know the cannot be as straightforward as saying that pitfalls and have a role to play in the advocacy that because £1.25 million, for example, works in is envisaged for the commissioner? Would that Northern Ireland, it will definitely work in Scotland. achieve better value for money? However, that is one factor that needs to be Dr Murray: One of the roles of a body such as examined. the SCHR will be to identify the available expertise Mrs Mulligan: Given what is in the bill, will the and see what it can add to existing provision. The £1 million that has been identified for the Scottish body will also use and exploit that available commissioner be sufficient? expertise. Many of the human rights commissions and commissioners use existing expertise. They Dr Murray: It is difficult to say. I return to my commission research and investigations and bring initial point that determining numbers should be in people from outside to work on their behalf, but within the commissioner’s control. From the outline there are potential pitfalls in that such bodies need in the explanatory notes, the approach seems to maintain some control over the people whom

114 †224 2567 21 DECEMBER 2005 2568 they commission to do particular types of work. but clearly that one-model-fits-all approach is not Various options are available to a human rights the only option. We need to examine the other commission or commissioner in terms of how they institutions in a jurisdiction to see whether their use available expertise and co-operate with mandates could be expanded and so forth. That existing bodies. A human rights commission must might be a useful and cost-effective alternative, as not duplicate existing provision, however. long as what is put in place fills the gap and fulfils Margaret Mitchell: The commissioner will have the role that the commissioner was initially seen to jurisdiction only over public bodies. In terms of the fulfil. commissioner’s ability to pull in expertise, will their The remit of a particular body could be lack of jurisdiction over non-government expanded by changing its title to reflect that organisations pose a problem or will they simply expanded remit. To rule out that possibility would ignore the issue? not necessarily be helpful. Expansion of the remit Dr Murray: Difficulties could arise; I am thinking of an ombudsman to protection of human rights of the tensions that can arise between civic has worked elsewhere. Scotland might find that organisations. There are differences of context, that option works. however—the issue may be less controversial in The Convener: I do not know how the system England than it is in Northern Ireland, where works in other jurisdictions human rights is not necessarily seen as a neutral issue and organisations are perceived as having a Is it fair to say that the provisions of the bill are particular viewpoint. If they become involved in the mainly concerned with public sector bodies? Is work of the commission, it can be perceived that that because we cannot intervene in private they are trying to put a particular slant on the work bodies? of the commission. That problem may not arise in Dr Murray: I do not know. I am not aware of the Scotland. As long as the commissioner is clear political background, but I do not think that there is about the basis on which he or she will use other a problem with the bill’s provisions reaching expertise—by setting it out in a contract or other beyond the public sector. Economic, social and documentation, for example—difficulties may be cultural rights make up one area where the bill avoided. straddles that more traditional public role. The Convener: I have a question on the status of a commission decision. Earlier, I asked about Returning to a point that was raised by one of the process by which priorities are arrived at. One the first witnesses, it is not always clear what a of our previous panel members used the word public body is. There is not necessarily a difficulty “declaratory”, which worried me a wee bit. I will with the bill’s provisions going further, but whether use smoking as an example—I always do, a broader role is needed depends on the although I am not sure why, because I am not a jurisdiction and context. smoker. The human rights commissioner could The Convener: So you can think of no reason in declare that smoking is a human right, but that principle why the bill’s provisions cannot be would not make it a human right, although I extended to include the private sector in particular. assume that such declarations would carry weight or influence. Surely someone who does not Dr Murray: That is not necessarily a problem, comply with such a declaration cannot be in although it is seen as controversial in some breach of it. Will you comment on that? contexts. It was considered controversial that for political reasons the human rights bill in Northern Dr Murray: That is definitely the case. We are Ireland included non-state actors and their talking about an official body whose viewpoints will responsibilities in human rights. From a human carry a certain amount of weight. NGOs such as rights perspective, I do not see a difficulty with Amnesty International may comment on matters, that; it might appear more consistent to others if but the commissioner’s viewpoint will carry more the bill took that broader approach. weight because of the manner of its establishment as a statutory body. I agree with what you said. The Convener: That is helpful. We have asked all our questions. I thank you very much for your The Convener: I am not sure whether you oral and written evidence. You have particularly heard the evidence of our first set of witnesses. emphasised that we should look at other Dr Murray: I did. jurisdictions, how they operate and what the parameters and options are. Thank you again for The Convener: Is it credible for us to consider attending today. alternative ways of creating the human rights function, perhaps by extending the role of the ombudsman into the human rights arena? 12:58 Meeting continued in private until 13:26. Dr Murray: Too often, the presumption is that a country has to have a human rights commission,

115 †225 2569 11 JANUARY 2006 2570

Our present remit, which is set out in the Human Scottish Parliament Rights Act 1993 as amended by the Human Rights Amendment Act 2001, provides for four major Justice 1 Committee statutory functions. The first is

“to advocate and promote respect for, and an Wednesday 11 January 2006 understanding and appreciation of, human rights in New Zealand society”. [THE CONVENER opened the meeting at 08:02] The second is Scottish Commissioner for “to encourage the maintenance and development of harmonious relations between individuals and among the Human Rights Bill: Stage 1 diverse groups in New Zealand society”. The third is The Convener (Pauline McNeill): I am Pauline McNeill and I am the convener of the Justice 1 “to provide information to members of the public who have Committee of the Scottish Parliament. I thank questions about discrimination and to facilitate resolution of disputes” Rosslyn Noonan for giving us her time. We are in the middle of stage 1 consideration of a bill that about discrimination would create a Scottish human rights “in the most efficient, informal and cost-effective manner commissioner. Although the remit of the possible”. commissioner would not be as broad as that of the New Zealand Human Rights Commission, we The fourth is think that we have something to learn from New “to lead, evaluate, monitor and advise on equal Zealand. employment opportunities”. I will start by asking you about the remit of the The 2001 act amendments added some specific New Zealand Human Rights Commission. I know new responsibilities, such as that to develop a that it was established in 1978 and has recently New Zealand action plan for human rights and that had its remit broadened. It would be helpful if you to encourage understanding of the human rights could give us a resumé of the remit of the dimensions of the Treaty of Waitangi. As the commission as it currently operates. committee may be aware, that is New Zealand’s founding document, about the place of which in Rosslyn Noonan (New Zealand Chief Human New Zealand society there is still considerable Rights Commissioner): I would be happy to do debate. that. As you point out, the commission started off in 1978. It was primarily an anti-discrimination The Convener: What types of human rights body that had a specific focus on sex issues has the commission taken up since its remit discrimination. The Office of the Race Relations was broadened? What kinds of issues have Conciliator had already been established to deal arisen? with race discrimination complaints. Between 1978 and 2001, there was a considerable extension of Rosslyn Noonan: I will identify three issues. the commission’s anti-discrimination mandate. First, a role that the commission would probably Under the Human Rights Act 1993, the remit of the not have been able to play under its old mandate commission was extended to cover matters such is the one that it has played in intervening in the as disability, age and sexual orientation. I think first case of a review of a security risk certificate, that the act covered 13 types of discrimination. which had been issued against Ahmed Zaoui, an More significantly, in 2001, the Government Algerian refugee in New Zealand. The commission decided to merge the old Human Rights intervened in that case right through to the Commission and the race relations office and to Supreme Court of New Zealand to ensure that the broaden the new single body’s remit to include the processes that the inspector-general of human rights framework as a whole. That was a intelligence and security used took account of substantial change. Although the complaints human rights and natural justice considerations. process is still heavily focused on anti- discrimination complaints, the commission’s other At each level, the courts’ decisions have work now takes full account of what I call the reflected and taken up perspectives that the human rights framework—in other words, the commission has presented in its role as an rights that are reflected in the Universal intervener. We are satisfied that although the Declaration of Human Rights, in the subsequent process that has now gone back to the inspector- United Nations convenants and conventions and general is not totally what we would want—that is in the eight International Labour Organisation difficult to achieve with issues of national human rights labour standards. security—it is a lot better than it was.

116 †226 2571 11 JANUARY 2006 2572

Secondly, we have undertaken a major inquiry they are, without further reference back to us. I into the accessibility of public transport. I mention know from the feedback that we receive that that it because, under the previous remit, we received already happens. complaints of discrimination in private sector The Convener: That is helpful. I have one transport provision, but it was only in 2001, with supplementary question. You talked about an the Human Rights Amendment Act, that the Crown inquiry into the accessibility of public transport and Government legislation, policy and practice provided by the private sector. Does that mean were fully covered. Therefore, the transport inquiry that you have a remit to inquire into private sector was able to examine central Government operations? legislation, policy, funding and practice; regional local government roles; and the roles and responsibilities of private sector operators. 08:15 The inquiry reflected probably better than Rosslyn Noonan: Yes. We can inquire into any anything else the value of what we call a human area in which there is a perceived or possible rights approach. The approach was not to identify violation of human rights, so the private sector is guilty parties against whom we might included. The legislation specifies the issues into subsequently proceed, but rather to lay out all the which we may inquire, such as access to goods issues and human rights responsibilities of the and services or education, and gives some parties and to identify how they could best meet exceptions. their responsibilities. Of course, public transport is such a complex Thirdly, I will mention a major piece of work with matter that plays such a significant role in the which we have been involved, of which the economy that if you are going to make a committee may be aware. I mentioned the New substantial difference you cannot consider it only Zealand action plan for human rights, to which I from the point of view of Government will come later but, as a base for that, we responsibilities. Our broad remit enables us to look undertook the first ever comprehensive review of comprehensively at human rights issues. the status of human rights in New Zealand. The It is interesting that one of the conclusions that full document, which is entitled “Human Rights in we came to was that, in a New Zealand context, New Zealand Today”, is a fairly weighty tome of although the responsibility to ensure that human some 400 pages, but it is accessible nonetheless. rights are respected falls largely on the state, it The work involved engagement with people from does not fall only on the state. Consider the throughout the New Zealand community—more position of children. We identified children and than 5,000 individuals and many organisations young people, along with disabled people, as the contributed. We worked with Government groups who are most at risk of human rights agencies, and a Government liaison committee abuses and violations in New Zealand today. The and national advisory council were established to protection of their human rights is largely down to provide advice and access to information for us family members, friends and professional people throughout the process. The document provides a who come into contact with them. The state will basis from which human rights legislation in New never be able to guarantee their human rights, so Zealand can move from being in essence simply we have emphasised that every New Zealander documents that New Zealand has signed up to has a responsibility to ensure that the rights of and then largely put on the shelf to being those around them are respected and that it is not documents that have a real place—that are, in just a matter for the state. In the long term that is fact, the starting point—in the development of essential if human rights are going to be a day-to- legislation, policy and practice. We have some day reality for every person. way to go before that is achieved, but people can Professor Jim Murdoch (Adviser): I have one now see the value and practicality of achieving it. supplementary question about the disputes “Human Rights in New Zealand Today” identified resolution function. You said that it is strongly issues on which we do well and meet international focused on discrimination. Are there any instances human rights standards and issues on which we of human rights—in particular civil and political fall short. However, more important, it showed human rights—mediation coming your way? people how human rights are reflected in a Rosslyn Noonan: There is an issue about how complex, developed and multiracial society; it we use language. It was when I was in Scotland at showed that human rights are not just a box to be the conference that launched the proposal for a ticked, but something that must be actively applied Scottish human rights commission that I and worked through. I believe that that work is one discovered that in the United Kingdom you regard of the most valuable contributions that the discrimination and equality as something separate commission has made to date, because it is from human rights. That is a puzzle to me; it has something on which people can draw, whoever taken me a little while to get my head around it. 117 †227 2573 11 JANUARY 2006 2574

We regard the right to be free from discrimination also referred to international rights such as the as a fundamental civil and political right. Universal Declaration of Human Rights. Is what you do founded on legislation; does it draw directly With respect to other civil and political rights, the on what international declarations, such as that on formal disputes resolution process is not available human rights, say; or do you have the option of to individual complainants, but the Human Rights basically doing what you like within the human Commission can take up any case and can take rights agenda? whatever action it sees fit on any matter when it thinks that there is a violation of human rights. The How, exactly, does the legislation presently formal complaints process is currently restricted to constrain you? What are you not able to do that, discrimination complaints, but in our context that is as a human rights advocate, you think you ought interpreted broadly. to be able to do? For example, there has been a complaint by a Rosslyn Noonan: The first of our primary particularly militant protest group or pressure functions is to advocate and promote respect for group that campaigns on water privatisation and an understanding of human rights in New issues. It has complained that Auckland City Zealand society—a function that is similar to the Council has denied its members speaking rights at one in the bill. We take that as a very broad recent meetings, that the council has sought to mandate, which is what the New Zealand eject them from meetings and that the council had Parliament intended it to be. However, the long them arrested and so on. title of the New Zealand Human Rights Act 1993 states that it is an act Members of the group have come to us and said that they think that the behaviour of the council “to provide better protection of human rights in New amounts to political discrimination. Their complaint Zealand in general accordance with United Nations will be considered in the context of our legislation, Covenants or Conventions on Human Rights”. but if it is not covered under part 3 of the Human Similarly, the long title of the New Zealand Bill of Rights Act 1993, we could still take it up—not Rights Act 1990, which we also have regard to, through the formal mediation process but through states that it is an act to a different route. “affirm, protect, and promote human rights and fundamental If the Human Rights Commission felt that there freedoms in New Zealand; and … To affirm New Zealand's was not political discrimination but that the council commitment to the International Covenant on Civil and Political Rights.” was acting in a way that restricted freedom of speech, political participation, or whatever, we We firmly base everything we do on those two could take the matter up with the council and work acts, which are based on international human things through with it. Our capacity to act is pretty rights covenants and conventions. They are what broad. At the moment, we are quite cautious in we relate everything back to. We do not do how we proceed, but we have been able to anything that, in its broadest sense, would fall resolve through other means a number of outside the rights and freedoms in the two primary individual complaints that have, strictly speaking, documents—the covenants on civil and political fallen outside the anti-discrimination provisions. rights and on economic, social and cultural rights. We check carefully that what we do relates back to We are often a place of last resort for citizens; them. we are the only place where they are listened to seriously. In some instances, there is nothing that The constraints in the 1993 act mean that the we can do—or nothing that it would be appropriate one area in which we cannot pursue individual for us to do. Nevertheless, the presence of cases is immigration complaints. We are able to somewhere where people are treated with respect inquire into or comment on immigration policy in and know they will be heard, even if their particular practice, but we are specifically excluded from issue cannot be pursued, has a very positive effect taking up any individual immigration case. on social cohesion and society as a whole. The Interestingly enough, we argued in the Ahmed role that we play in the process—taking time to Zaoui case that it was fundamentally a human explain to people why something has happened, rights case rather than an immigration case and or opening the door back to the agency or the Crown did not challenge our request for organisation against whom they have a grievance intervener status. Although the Crown was not and persuading it to take them seriously—makes happy about our intervening in the case, it did not an important contribution to a society in which seek to use any legal technicalities to prevent us people are treated with dignity. from being involved. Stewart Stevenson (Banff and Buchan) As regards accessing documents and evidence, (SNP): I want to probe the legal basis on which if we require the provision of documents that are you operate. You referred to the 13 headings that not willingly offered to us, we have to seek you work on, which include disability and age. You approval from a district court judge—the lowest 118 †228 2575 11 JANUARY 2006 2576 level of the court system. It is not the end of the developed over the years, which meant that when world, but it is an unnecessary impediment and I the commission dealt only with discrimination have never received a satisfactory explanation of complaints there was a reasonably good working why that provision was made. relationship among the different agencies. For example, if the Office of the Ombudsmen received Under the system that we work to, the a complaint that came within the commission’s commission runs the disputes resolution service. area of responsibility it would forward it to us, and Under my oversight is a separate office of human vice versa. After all, given the maturity and calibre rights proceedings that can provide legal of the people who are appointed to such positions, representation to complainants who do not get a one would expect them to be able to arrange an satisfactory settlement through the disputes efficient and effective working relationship. resolution process. The human rights review tribunal is the first level of entry into the court That said, there was a frisson of territoriality or system and hears human rights, privacy, health what might be called patch protection—I do not and disability cases. Although I am responsible for know whether you use that phrase in Scotland— the efficient and effective administration of that when the Human Rights Commission and the office, the director is required independently to Office of the Race Relations Conciliator were apply the criteria in the act and decide which merged and the commission’s mandate was cases to take up. Currently, there are two cases of broadened. Frankly, in order to get over that significance for the Government. situation and to avoid unnecessary duplication— One case is from the Child Poverty Action which we had to do—we and the other agencies Group, which claims that discriminatory payments were required to work together maturely. We had are made to families dependent on benefit income to take the initiative. as opposed to employment, so that is about child Our approach has received a good response. tax credit issues. The other case relates to the For example, after signing a formal memorandum state’s refusal to enable family members to of understanding with her predecessor, we now contract to care for other family members who have a particularly close relationship with the need full-time care. As those cases work their way children’s commissioner, who has worked in full through the system, they will create significant partnership with us on the review entitled “Human jurisprudence in New Zealand. There is very little Rights in New Zealand Today” and the action plan. human rights jurisprudence because ours is not a Moreover, in two of our offices we share the litigious society. For the most part we work things premises, library and reception with the health and out between ourselves, so there is a gap in our disability commissioner, and we work together on jurisprudence. many issues that come our way. Although the The important point is that, initially, the Crown health and disability commissioner focuses more challenged the standing of the Child Poverty on consumer rights, he also deals with certain Action Group, but the tribunal has since made the important human rights elements, which we strong decision that every New Zealander has an strongly support. interest in having a discrimination-free society and We also work with the Office of the Ombudsmen that the Human Rights Act 1993 does not specify on issues related to prisons. I should point out that who is allowed to bring a case. The Crown is New Zealand has signed the Optional Protocol to currently appealing the decision to the High Court, the Convention against Torture and Other Cruel, which I believe will uphold the tribunal’s decision. Inhuman or Degrading Treatment or Punishment, That will put down a strong marker for the future. which provides a national mechanism in that respect. Of course, a society such as ours has a 08:30 number of national mechanisms to oversee places of detention. Proposed legislation before the Marlyn Glen (North East Scotland) (Lab): Parliament seeks to recognise the responsibilities Scotland has a number of commissioners and of the Office of the Ombudsmen, the children’s ombudsmen, such as the commissioner for commissioner and the Police Complaints children and young people and the Scottish public Authority, and to provide for the New Zealand services ombudsman, whose remits are likely to Human Rights Commission as the national co- overlap with that of the proposed Scottish human ordinating mechanism. We will not take over rights commissioner. Has the New Zealand anybody’s responsibilities, but we will be Human Rights Commission experienced difficulty responsible for liaising with the relevant in finding its own space among other commissions international body and for taking up systemic and ombudsmen? How have any overlaps been issues. handled? We have an inter-commission liaison group—not Rosslyn Noonan: That is a good question. A an elegant title—that works effectively and tradition of distant but effective co-operation was

119 †229 2577 11 JANUARY 2006 2578

includes four commissions with human rights Rights into practice after the second world war, it elements. Increasingly, we are finding ways to co- was almost as if we lost sight of the value of an operate and to share training opportunities and explicit acknowledgement of the human rights staff development. I hope that by the end of the framework. Like Britain, we do not have a written year we will have agreed a nationwide citizens constitution, but we have a number of phone number that any person in New Zealand constitutional documents, although even the Bill of who has an issue can call to be put through to the Rights Act 1990 is not entrenched legislation. relevant agency. That will increase accessibility. When we reviewed the status of human rights in New Zealand we found that people had a gut The law needs to be clear about responsibilities, sense of what human rights were, but they had but ultimately it is for the people who are little formal understanding of them. Our review appointed to jobs to work out the relationships. showed that we in New Zealand seem to have lost Those people—including existing appointees— our understanding of what the right to free should be given the clear message that Parliament education actually means. We found that students wants and expects co-operation. The Scottish bill were being charged for courses and were not requires the human rights commissioner to co- permitted to do them if they could not pay the fees. operate with other agencies; other legislation could be amended to place an equal responsibility In the short time in which the commissioners on those other agencies. have operated under the new mandate, our experience has led us to believe that we have a Margaret Mitchell (Central Scotland) (Con): long way to go in developing an understanding of Under the bill, a main function of the commissioner human rights in the wider community, although we will be to promote and raise awareness of human have identified some clear areas to target. One of rights. How has New Zealand done that? How our most successful human rights campaigns effective has it been at changing New Zealand concerned people who experience mental ill society? For example, you said that New Zealand health. It was successful because it was society is not particularly litigious. Is that a comprehensive and involved television, radio and reflection of your promotion of human rights? community activities and programmes. It was run Rosslyn Noonan: New Zealand provides an by the New Zealand Ministry of Health, although interesting study in human rights, given our short the Human Rights Commission was involved in history. We can start in 1840 with the Treaty of elements of it and supported it. The annual budget Waitangi, which was a remarkable document for for the campaign was half of the commission’s its time. Its third article provided to Maori all the total budget. rights and freedoms of British subjects at the time, Our contribution has to be targeted. For which was an extraordinary guarantee. In the example, we are working in isolated rural areas same year, a carpenter from Britain—an early with very poor communities on programmes that migrant settler—organised, campaigned for and are producing interesting results. Significantly, a won the first eight-hour working day anywhere in number of marae on the east coast asked the the world. The committee will know about workers’ commission to work with them to develop human rights and women’s rights in New Zealand. rights-based marae. That is taking the idea of We have a history of placing a strong emphasis human rights into the heart of Maori culture and on rights, although it has been uneven—many practice. If you were here, you would understand rights for Maori in the Treaty of Waitangi, including the significance of that, as there is legitimate their right to their property, were of course concern among the Maori about mainstream dishonoured. However, New Zealand had an early society imposing its standards on them. old-age pension and the great depression led to One of our priorities at the moment is the public free education and a free health service—couched sector, with which we are doing a great deal of in terms of the rights to education and health. work. Most public servants, including senior public Along with others, New Zealand played a role in servants, had no idea that the international human ensuring that the Universal Declaration of Human rights standards that New Zealand ratified had a Rights contained economic, social and cultural bearing on their day-to-day work or that they rights. needed to know about them and apply them. The We have quite a strong commitment to rights commission cannot just tell them that they have to that has built up from the place and from the get on with it; the commission has to work with the people who came here. Britain colonised New public sector to show it the value and significance Zealand at a time of considerable human rights of human rights standards and how to apply them. focus in Britain—the anti-slavery movement and We have a programme with the police to get them so on were happening. to integrate human rights standards into their mainstream training—not just their pre-service When we put the rights that were so eloquently training, but their training for promotion. The stated in the Universal Declaration of Human programme aims to encourage the police to bring 120 †230 2579 11 JANUARY 2006 2580 an awareness of human rights standards into their Local government and regional government day-to-day work. have been extremely responsive and we are working with them on relevant issues. 08:45 The action plan has been important for non- We are evaluating all our programmes over time governmental organisations, community groups to see what effect, if any, they have. According to and so on because it has allowed them to see the public opinion surveying that we have done what a systematic approach to human rights could over the past three years, around 80 per cent of mean in their areas of interest and how the human New Zealanders regard having an organisation rights standards can assist them to advocate and that exists to promote and protect human rights as develop the areas that are priorities for them. The either important or very important. That is an action plan is an incredibly useful and educative incredibly high return in terms of national opinion tool as well as being an advocacy document. It is polling. not a blueprint. We have a long way to go. We are hampered by Marlyn Glen: Will the action plan work on a five- a lack of adequate resources. For example, we year cycle? Will you then go back to the have twice asked the Government for money to beginning? run major multimedia campaigns, but it has Rosslyn Noonan: Yes—we have committed a declined. However, we have done a couple of future commission to reviewing the plan. We have smaller multimedia campaigns with some outside a regular programme of reporting on sponsors, such as media organisations that have developments with respect to the action plan, but donated time and expertise. we have a five-year cycle for the full review. You have to be in for the long haul. Obviously, we have a way to go. We have some good Mike Pringle (Edinburgh South) (LD): Good examples that are having an impact, but I would morning. Your inquiry function is broader than not say that we have the answer. what is proposed for our commissioner for human rights. How many inquiries do you conduct Margaret Mitchell: Thank you, that was annually and how long do they take? I presume comprehensive and helpful. that some inquiries will be shorter and others will be longer. What staff resources are involved? Marlyn Glen: You talked about the New Zealand action plan that was published earlier this Rosslyn Noonan: We have carried out only a year. Does the plan represent the work limited number of inquiries to date, although we programme for your commission for the next five are in the process of putting in place provisions to years? How do you review and update the enable us to carry out inquiries more frequently. programme? Your remit is wide and you are making choices all the time. Our major inquiry into transport took two years. We had timetabled about 18 months for it, but the Rosslyn Noonan: As a result of the action plan, inquiry took longer because the process meant we have just completely reviewed our strategic that we went back to the key players several plan for the next five years, introduced new times. Interestingly, that inquiry has resulted in priorities and identified the specific actions that are changes, even though the Government has not yet within our remit either to lead on or to undertake adopted the report, which was completed only in with others. We await the Government’s response October. Local government and private operators to the action plan; our Parliament placed on us a have already acted on some of the report’s statutory responsibility to develop it. The recommendations because, although they started Government needs to pick up on the elements of out being quite hostile, the process took them the plan that are relevant to it as a Government along with us. and to endorse them as part of the Government action plan for human rights. Our inquiries into other issues could be characterised better as research. For example, we The committee will be aware that we had an are carrying out an inquiry along with the Mental election late last year and that the Government Health Commission into the use of seclusion in was not formed until November. Initially, the psychiatric treatment, but that inquiry is a much Government was supposed to respond to the lower-key affair with no public hearings. For that action plan in November, but that has been inquiry, we have issued written consultation deferred until March because the Government had papers on which we have invited feedback. to go straight into the budget cycle. For us, a key issue is going to be how the Government The provisions in the Scottish Commissioner for responds to the areas of the action plan on which Human Rights Bill about the conduct of inquiries it needs to pick up. are exactly what we did for our big transport inquiry. We first published draft terms of reference, which proposed our methods and included the

121 †231 2581 11 JANUARY 2006 2582

provisions in our act that we would work under. Government would not fund and we were unable For example, our working under the provision that to reorganise our funding so that we would have enables us subsequently to take people to court had enough to carry out those campaigns was ruled out from the beginning. However, it effectively. The commission achieves a lot with the would have been highly inappropriate to go money that it receives, but we need about 10 through the same process for our current inquiry million New Zealand dollars a year to be able to do into seclusion. A human rights commissioner our job comfortably and effectively. In my view we needs to have inquiry powers and to be given are underfunded. broad principles under which those powers should In New Zealand, the commissioner’s salary is be used, but the commissioner needs also to be set by the Remuneration Authority, which also sets allowed to adapt the principles to particular the salaries of chief executives, members of circumstances so that inquiries can be shaped Parliament and judges. That is an independent most appropriately to the subject matter and the process. My salary is just over 200,000 New people involved. There should not be an overly Zealand dollars; we are required to report my prescriptive approach. salary annually, so that is public information. It is At the moment, we are scoping a number of not negotiated with the Remuneration Authority. possible inquiries. We will examine various By New Zealand standards, it is a very reasonable elements of prisons and imprisonment, including salary. imprisonment rates. We will also examine issues Mike Pringle: You have the right to investigate that affect transgender and transsexual people, individuals and individuals’ human rights, which who are particularly marginalised and experience our commissioner will not be able to do. Should serious difficulties in our health services. We might the Scottish commissioner be able to carry out also carry out an inquiry along with the children’s such investigations? commissioner into children’s rights with respect to immigration decisions that affect their parents. 09:00 Over the next three years, we will conduct one Rosslyn Noonan: A commissioner should significant inquiry a year and probably one smaller certainly be able to receive complaints from inquiry. We have largely used internal staff for our individuals and, if necessary, to take them up. It is inquiries because our resources are limited, but difficult to understand why you would not give a we have sometimes contracted out specific pieces commissioner that power. When appointments are of research. For example, we might contract made, you should trust people to make decisions academics to do literature surveys and analysis— on priorities, and on which complaints can be PricewaterhouseCoopers has done some taken up and which cannot. I have not read economic analysis for us. We are really only anything to convince me that such a restriction is limited by our resources. appropriate. Mike Pringle: That is interesting. You talk about The Paris principles provide that national human budgets and limited resources. What is your rights institutions are able to receive complaints or annual budget? Bizarrely, we have decided what representations from any person, and to deal with our commissioner’s annual budget will be before those complaints if it is deemed appropriate to do we have even passed the bill. You talked about so. My commission has a broad mandate and not getting money from the Government and about people come to us with a whole load of stuff, but contracting out, but I presume that somebody has that does not mean that we take everything up— to pay for that. Who pays? we do not take up matters that fall into other The other slightly controversial thing in my jurisdictions. view—and perhaps in the views of others—is that Mike Pringle: Thank you. That is very useful. we have already decided what our commissioner’s Mrs Mary Mulligan (Linlithgow) (Lab): Good annual salary will be, which is equivalent to about morning. I would like to ask you about 200,000 New Zealand dollars. Is that an adequate accountability. The Scottish commissioner for salary? human rights will be funded by, and held Rosslyn Noonan: Our budget from the accountable to, the Scottish Parliament; I Government is 7.5 million New Zealand dollars a understand that the New Zealand commission is year. We negotiate annually with the Government; funded by your Government. What is the although it makes a three-year commitment to a relationship between your commission, baseline budget amount, in each annual budget Government and Parliament? round we bid for additional funds. In terms of the Rosslyn Noonan: The arrangements in the bill independence of the institution, funding is one are preferable to the New Zealand arrangements area in which the Government is able to exercise in that respect. Ideally, a national human rights some control; for example, we put in a wonderful institution should be accountable and answerable bid for human rights public campaigns, which the to its Parliament. 122 †232 2583 11 JANUARY 2006 2584

In New Zealand, the commission is required to Mrs Mulligan: I am interested in how you were be independent. Commissioners are appointed by appointed, which you said was done through a the governor-general on the recommendation of recommendation. Is that appointment for a fixed the Minister of Justice. We receive warrants from term? the governor-general so that we cannot be Rosslyn Noonan: Yes, it is for five years. The dismissed other than for criminal behaviour or appointment process is that the Minister of Justice bankruptcy, for example. Once commissioners are sets up, or requests that the secretary of justice appointed, their position is highly protected for the sets up, an independent panel and calls for duration of the warrant. nominations or applications for the position of Other than in exceptional circumstances that commissioner. The independent panel has always must be tabled in Parliament, ministers may not included at least one civil society representative as direct us or interfere in what we do. We have a well as a senior public servant or an academic— memorandum of understanding with the Minister that is the kind of mix. That panel then makes of Justice, which sets out in some detail that the recommendations to the minister, who is free to minister will not interfere with our strategic accept or reject them, but all that information is priorities. We are funded through vote justice—the available to the public under the Official justice budget. That is the administrative line Information Act 1982. In the period that I have through which our money comes. However, once been in the job, the minister has followed the we have the money, what we do with it is our recommendations of the independent panel. business. Mrs Mulligan: I hope that my next question is Obviously, if the Government votes us money to not unfair: how do members of the Parliament do one thing, we cannot then spend it on view the Human Rights Commission? something else—we must do what we put the bid Rosslyn Noonan: There are mixed views about in for. However, once the money is part of our the commission. However, when we presented our baseline, it is ours to allocate. report, “Human Rights in New Zealand Today”, We have to report annually to Parliament, and and the last time that the House of we report quarterly to the Minister of Justice to Representatives examined our annual report, one highlight our key activities, primarily for reasons of of our greatest challengers said somewhat financial accountability. The Justice and Electoral reluctantly, “Well, I have to say, you’ve been very Select Committee of the New Zealand Parliament productive”, which I took as an underhand has a specific mandate for human rights and it compliment. examines our annual report as a matter of course. I should have said that another element of the It comments on the report and give its views on convention about the appointment of the chief how we could do better. The examination can be human rights commissioner is that the quite rigorous. Government of the day consults the Opposition We also had a number of exchanges with the about who they propose to appoint. At the time of Justice and Electoral Select Committee in the my appointment, relations between the Minister of development of “Human Rights in New Zealand Justice and the Opposition spokesperson on Today” and the action plan. That committee then justice were particularly fraught and the sought a formal meeting with us about the results consultation was at best a gesture. Initially, I felt of “Human Rights in New Zealand Today”. I would somewhat disadvantaged by being caught up in a describe our contact with it on our work as regular political shouting match that I had not caused, but but not close. of which I was the focus. That took some time to overcome. We also have considerable involvement with That is why the appointments processes are other parliamentary select committees. In some important. You have a good starting base, instances, committees ask us to advise them from because the Scottish Parliament will make the a human rights perspective on issues that are appointments. If the Justice 1 Committee is to be before them. We are also free to make responsible for driving that process, you will need submissions to parliamentary committees on any to think about exactly how you will go about it and bill, inquiry or report that they are involved in, and what, if anything, can be done to prevent it it is up to us whether we do that. However, if a becoming a source of debate and argument over select committee asks us, we always respond legitimate party political differences, although it is regardless of whether we have capacity or not possible to get away from that completely. whether the matter is a priority at the time, However, all that I have ever asked is that we be because we regard the Parliament to be an judged on the quality of our work—I am happy to essential element in a robust human rights accept criticism if it has been poor—and the environment. quality of that work has begun to win people over.

123 †233 2585 11 JANUARY 2006 2586

We have actively sought to work with all the I am fairly comfortable with our relationship with political parties. We are not a Government the courts and the restrictions that prevent our department and do not have to go through the doing anything about specific cases. However, minister; therefore, when we produce a major interestingly, we have had a case that we report, it goes to the leaders of the other political originally felt that we could not take up, which parties at the same time as it goes to the minister. related to the treatment of a disabled person in a We offer to brief them all and, increasingly, they court. Subsequently, the court itself determined are asking to be briefed. That is something that that he had been inappropriately treated and that the institution and commissioners have to do, but we could have treated that as a discrimination parliamentarians, too, need to think about their issue. Again, there is a fine line between the role. It is perfectly legitimate to have any number judicial function and the practices and approaches of arguments about how human rights are best around the courts. protected but, ideally, the genuine consensus should be that they are a critical part of a fair and decent society—something to which everyone is 09:15 committed, regardless of their political perspective. The Convener: Does that mean that, for any issue that the commission would regard as a The Convener: I want to ask about your breach of human rights, you could begin court relationship with the New Zealand courts. In our proceedings to challenge the state or an bill, there are limited powers to intervene in the institution? Is the power as broad as that? Scottish courts. What powers does the New Zealand Human Rights Commission have in its Rosslyn Noonan: It is fairly broad. There are relationship with the courts? specific links to matters that might come under the legislation’s antidiscrimination provisions. We have Rosslyn Noonan: As will be the case for the not really tested the power yet to see just how far Scottish commission, we are excluded from it would go. To what extent it would be limited making any comment on matters that are before would probably depend on the extent to which the the courts or doing anything about judgments of Crown or a respondent chose to challenge our the courts. We do not take up complaints against standing. decisions of the courts or the behaviour of judges, The Convener: I can see that. and so on. We receive such complaints, but we do not act on them. We have the power to pursue a Rosslyn Noonan: We would not consider court case ourselves if we choose to do that; however, proceedings for just anything. An issue would we have not yet chosen to do that. The Child have to be clearly linked to a human rights Poverty Action Group at one point came to the standard and there would have to a clear basis for commission to ask that we pursue a case on its proceeding. behalf, but we decided that that was not the most The Convener: You would want to ensure that a appropriate thing for us to do. We can apply to particular issue involved a breach of human rights. intervene, and I think that that will increasingly be our most common involvement with the courts. Rosslyn Noonan: Absolutely. Also, the courts can ask us to act as amicus curiae. In a couple of instances, at tribunal level, a The Convener: You would also have to weigh tribunal has sought our views on a specific up your chances of winning. Initiating court situation and has used them in its considerations. proceedings for a breach of human rights risks We were not party to those cases, but the losing the court decision, whereas you might tribunals asked us how we viewed certain succeed with a human rights issue by not going to situations. court. If you use your powers to go to court on a breach of human rights and the court decides At the regional level, we work with the Asia against you, you have lost that issue. Pacific Forum of National Human Rights Rosslyn Noonan: Absolutely. However, our Institutions, which has an advisory council of approach would be that court action would be the jurists—the Asia Pacific region does not have the very last step. In our context, I cannot imagine equivalent of the European Court of Human court action ever being the first option; it would be Rights. One of our appeal court judges, Justice very much the last resort. Susan Glazebrook, is the New Zealand member of the advisory council of jurists. Every year, the Interestingly, on the role of the director of human national human rights institutions in the region rights proceedings to accept cases and provide refer specific questions to the advisory panel of legal representation for them, one of the criteria jurists, which then sits on those questions and from the Human Rights Act 1993 that must be reports on them. The panel’s reports are taken into account is the chance of success. One disseminated back through the countries. would always weigh up what the chances of success were. However, we have debated a

124 †234 2587 11 JANUARY 2006 2588 couple of situations in which getting the Rosslyn Noonan: I wish you all the very best. I jurisprudence would be helpful whether or not we believe that human rights commissions are worth were successful because a court decision could while. They are not a panacea, but they are an clarify the law and make it clear whether we important component of a society such as yours needed to advocate for a law change. and ours, for ordinary people of the society. Human rights commissions have a real Generally, I agree with you. We would never contribution to make to building fair and just take an issue to court unless there was a very high societies in which everybody, from children up, chance of success. However, there might well be can not only feel confident of their rights but know cases in which, even if we were not successful, it their responsibilities. Good luck with your work. I would be important to clarify the law and, if will follow it with interest. I hope one day to be necessary, to work subsequently for a change of there to drink a toast to the establishment of the law. commission. The Convener: That was extremely helpful. The Convener: Thank you. That is the end of our questions, Rosslyn. You have been very frank and insightful and I thank Meeting closed at 09:20. you for that. You have given us an awful lot to consider. We will be going into a committee meeting in about half an hour’s time to question more witnesses to see what they think about the creation of a human rights commission for Scotland. Thank you for working so hard with the Scottish Parliament and for answering our questions today.

125 †235 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

2nd Meeting, 2006 (Session 2), 11 January 2006, Written Evidence

SUBMISSION FROM THE LAW SOCIETY OF SCOTLAND

Introduction

The Law Society of Scotland’s Human Rights Sub-Committee has considered the Scottish Commissioner for Human Rights Bill and has the following comments to make.

The Sub-Committee welcomes, in broad terms, the proposal for a Scottish Commissioner for Human Rights, particularly in light of the position of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) in Scotland following the coming into force of the Scotland Act 1998 and the Human Rights Act 1998.

The Sub-Committee considers that a Scottish Commissioner for Human Rights would be of benefit to Scotland. In the Paris Principles endorsed by the UN Commission on Human Rights in 1992 (Resolution 1992/54) and by the General Assembly in 1993 (Resolution A/RES/48/134), on the status of national institutions protecting and promoting human rights, it is stated that “A combination of parliament and the judiciary only is imperfect as an apparatus for upholding fundamental rights”. Accordingly, the addition of a Commissioner will help to assist in creating an informed culture of rights in Scotland.

Although human rights issues have come to the forefront of debate in Scotland following devolution, there is currently no body with responsibility for the development of a human rights culture within Scotland. It is inappropriate for the Scottish Executive to wholly assume that responsibility as human rights issues, by their very nature, can involve challenges to the actions of public bodies such as the Scottish Executive. The Sub-Committee considers it important that clear steps are taken to ensure compliance with all of Scotland’s international obligations as required by the Scotland Act 1998 and to ensure that such compliance is proactive rather than reactive. A Human Rights Commissioner would act as an impartial and independent promoter of the development of a human rights culture and would allow public bodies to benefit from independent and objective advice on human rights issues. He or she would also permit the structured consideration of other international obligations with human rights aspects – section 2(2)(b).

The Sub-Committee considers that parliamentarians would also benefit from this kind of body. The Scottish Parliament, like the Executive, is bound by Convention rights both in terms of its legislative capacity, but also because it is a “public authority” in terms of section 6 of the Human Rights Act 1998. At present it is not clear that the Parliament has access to independent and impartial advice on human rights issues. The general duty contained in section 2, reinforced by the powers to provide information, guidance and education in section 4 of the bill, will enhance this capacity.

Specific comments

Section 11 – Power to intervene The Sub-Committee also is of the view that the provisions of section 11 require further consideration.

The right to intervene is restricted to intervention in civil proceedings before the Court of Session, Sheriff Court and the Land Court. There seems to be no clear rationale for excluding from the definition of “court” the Appellate Committee of the House of Lords, the Judicial Committee of the Privy Council, or the prospective UK Supreme Court.

It has been suggested that any relevant intervention by the Commissioner is likely to be made at a relatively early stage in any litigation and that it would therefore be unnecessary for an intervention to be made at the final appellate stage.

It is not immediately obvious that the Commissioner will always be in a position to intervene at an early stage in a case where his or her intervention might be useful. The Bill does not envisage changes to the Rules of Court to require intimation to the Commissioner of any potential human

126 †236 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D rights issue arising in a case akin to the requirements under the Scotland Act 1998 for intimation of devolution issues to the law officers. The Sub-Committee acknowledges that it would be impractical and undesirable to impose such a requirement for intimation but in its absence it cannot be assumed that the Commissioner will always be made aware at an early stage of cases in which an intervention might be of benefit to the court. The human rights issue or issues arising may only come into focus in appeal proceedings and there would be merit in extending to the Commissioner the right to seek leave to intervene in those proceedings. The court in question would of course retain the discretion to refuse to grant leave.

There is no right of appeal against a refusal by a court to allow the Commissioner leave to intervene in court proceedings. The Sub-Committee appreciates the desire to ensure that the court retains control over its own proceedings but it is concerned that the absence of a right of appeal might allow the purpose of this provision to be frustrated.

The policy memorandum lodged in support of the Bill does acknowledge the argument that it is “possible that a judge would refuse an intervention in circumstances where it would be preferable to allow it.” (Paragraph 76). This acknowledgement is made in the context of a discussion about whether the courts ought to be under a duty to allow an intervention by the Commissioner.

The Sub-Committee does not propose that the Commissioner should have an absolute right of intervention but we are concerned that where a refusal to allow an intervention is made in circumstances which may be – or appear – wholly unreasonable there ought to be a mechanism by which that refusal can be appealed.

It is not clear why it was thought appropriate to exclude the Commissioner from intervening in children’s hearing proceedings nor are we convinced that the Commissioner should be excluded from intervening in criminal proceedings.

It is not clear either from the Bill that an intervention by the Commissioner at first instance in the Sheriff Court or Court of Session would entitle the Commissioner to participate in any appellate proceedings in the same case. This point should be clarified.

Judicial Review The Sub-Committee notes that it has recently been accepted by the Department for Constitutional Affairs that the UK Commission for Equality and Human Rights should have the right to raise proceedings for judicial review on its own behalf. The Scottish Bill does not make provision for any similar such power to be conferred on the Scottish Commissioner. The asymmetry of these provisions could lead to undesirable anomalies including an increase in the scope of the UK’s Commission’s responsibility for human rights protection in Scotland in circumstances where it might be more appropriate for the Scottish Commissioner to be involved. Theoretically, at least, the Scottish Commissioner and UK Commission might co-operate in such a way that the Scottish Commissioner could give consent to the UK Commission taking action within the “devolved” sphere. This action might include petitioning for judicial review. Unless there is a clear and justifiable rationale for the distinction, the Sub-Committee is of the view that the Scottish Commissioner’s powers in relation to court action ought to be equivalent to those of his or her UK counterpart.

Accountability Issues In terms of accountability the bill provides, in section 12, for an obligation on the Commissioner to lay before Parliament a general report on the exercise of the Commissioner’s functions. Accountability could also be enhanced by regular meetings with the Justice Committees. It might also be expected that the Commissioner would regularly appear before Parliament to fulfil the duty, in terms of section 3, of monitoring and keeping under review law, policy and practice in respect of human rights and recommending changes to the law.

Section 18 – Interpretation The Sub-Committee notes that the bill defines Parliament as the Scottish Parliament. Accordingly, this will require some amendment to the bill for the purposes of clarity in respect of section 1(2) and schedule 1, paragraph 3(1)(b).

127 †237 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

The Law Society of Scotland 22 November 2005

SUBMISSION FROM THE FACULTY OF ADVOCATES

The Faculty of Advocates has resolved to make the following observations in the Scottish Commissioner for Human Rights Bill. The Faculty notes that the Justice 1 Committee has asked for views on six specific questions. Before addressing the issues raised in those questions, the Faculty notes that it has submitted written responses to the two earlier consultation papers in 2001 and 2003, and reference may be made to them for further details of the Faculty’s views.

Question 1:- Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

As indicated in the Faculty’s response of June 2001 to the Scottish Executive’s consultation document “Protecting Our Rights: A Human Rights Commission for Scotland?” the question of whether a Scottish Commissioner for Human Rights should be established enters into areas of policy on which it is inappropriate for the Faculty as a body to pass comment. In the appendix to the Faculty’s response, legal considerations relevant to the question were canvassed.

The Faculty remains of the view that whether or not to establish a commission is essentially a political matter. Nonetheless, given the intention to establish a Great Britain Commission with powers relating to “reserved matters”, and the existence of the Northern Ireland Commission for Human Rights, it would seem anomalous were there not to be an equivalent body in Scotland, addressing devolved issues.

Question 2:- What would such a body add to existing mechanisms for protecting human rights in Scotland?

The Faculty notes that the Bill does not include a specific power on the part of the Commissioner to support appropriate legal cases. As the Faculty indicated in its two earlier responses the Faculty is of the view that the Commissioner should have the power to take legal action test cases where other funding is not readily available. The Faculty indicated that the existing statutory and race equalities commissions are so empowered. The Faculty remains of the view that the Commissioner should have an equivalent power.

The Faculty also stated in its earlier response that it would be desirable for the Commissioner to be able to litigate in his/her own name in exceptional cases. The Faculty acknowledges that any such power might require amendment of the meaning of “victim”, in the Human Rights Act 1998.

The Faculty considers that the reduction in public funding of civil and criminal defence litigation will lead to a reduction in the effectiveness with which the courts are able to guard against human rights violations and to extend the protection of individuals. It is likely that the Commissioner will need to fill the gap left by any reduction in quality of representation.

Question 3:- How should the Commissioner be accountable?

The Faculty is of the view that accountability would be best achieved by the Commissioner reporting annually to Parliament, with the report being published and made available to members of the public.

Question 4:- Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

The Faculty considers that the proposed funding is very modest for the role currently proposed. Clearly, it would require to be considerably increased if a power to initiate litigation were given.

128 †238 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

Question 5:- What lessons might be learned from other Commissioners/Ombudsmen set up under the auspices of the Scottish Parliament/Scottish Executive?

The Faculty has no comment to make on this matter. It notes, however, that under the Scottish Parliamentary Standards Commissioner Act 2002 obstruction is an offence, whereas the position under the Ethical Standards in Public Life (Scotland) Act 2000 is as proposed in the Bill. We are not clear as to the reason for the difference of treatment.

Question 6:- Do you have any views on the proposed remit for the Commissioner?

The Faculty makes the following comments:

Clause 11 Power to Intervene The Faculty considers it anomalous that the current proposal restricts the power to intervene in civil cases and does not extend to cases in the House of Lords, the Privy Council or the Lands Tribunal for Scotland

The Faculty considers that the Commissioner might usefully seek to intervene in appellate criminal cases raising matters of principle. This is particularly so in Lord Advocate’s references.

The Faculty of Advocates 17 November 2005

129 †239 2589 11 JANUARY 2006 2590

with the other institutions in Scotland that you Scottish Parliament mentioned, but it is reflected in the first Paris principle. Under the Paris principles, national Justice 1 Committee institutions should set standards in the field of human rights, Wednesday 11 January 2006 “act as a source of human rights information for the Government and people of the country … assist in [THE CONVENER opened the meeting at 10:02] educating public opinion and promoting awareness and respect for human rights” Scottish Commissioner for and Human Rights Bill: Stage 1 “consider, deliberate upon, and make recommendations” on human rights. The Convener (Pauline McNeill): Good morning and welcome to the second meeting in There are issues around how the Scottish 2006 of the Justice 1 Committee—in case anyone commissioner for human rights will interact with wonders, our first meeting was at 8 o’clock this the commission for equality and human rights that morning, when we had a videoconference with the will be established by the United Kingdom Equality chief human rights commissioner of New Zealand. Bill. As members know, that bill is currently in the We all found that session interesting and members House of Commons—the report stage should take might use some of the points that arose from it in place on 16 January. their lines of questioning. The Equality Bill is a far-reaching bill that will I welcome our witnesses and wish them a happy bring together all the existing commissions—the new year. Michael Clancy, who is known to Commission for Racial Equality, the Equal members, is from the Law Society of Scotland; Opportunities Commission and the Disability Christine O’Neill is a member of the law reform Rights Commission—and add a power to those committee of the Law Society of Scotland; and specific sectoral interests to promote human rights Valerie Stacey QC is the vice-dean of the Faculty matters in many aspects of UK law. The Equality of Advocates. Bill will create a Scottish committee and there will be a Scottish commissioner; it will be interesting to Thank you for your submissions and for coming see how the relationship between the commission along to answer our questions on the creation of a for equality and human rights and the Scottish human rights commissioner for Scotland. commissioner will work out in practice. Mr Bruce McFee (West of Scotland) (SNP): I When the bill was going through the House of will begin with some of the fundamentals. What Lords, we raised certain issues with the Lords value would a Scottish commissioner for human committee that dealt with it. In response to rights, as proposed in the bill, add to the work of Baroness Carnegy of Lour, Baroness Ashton of the Scottish public services ombudsman and the Upholland made certain commitments about what proposed United Kingdom commission for equality she expected would happen in the event of the and human rights? Equality Bill and the Scottish Commissioner for Michael Clancy (Law Society of Scotland): Human Rights Bill becoming law. It was stated: Good morning, and a happy new year to you all, “There will be a memorandum of understanding to tie up too. the loose ends, which are an inevitable outcome of the Scotland Act 1998”.—[Official Report, House of Lords, 19 That is an interesting question. The bill will October 2005; Vol 677, c 761.] create a new body with a range of powers and it will be interesting to see how that body will fit with One would want to watch carefully how that the existing geography. It is clear from the relationship progresses. The committee might structure of the bill that the new body will follow want to ascertain from the Department for closely the Paris principles, which the United Constitutional Affairs the extent to which the Nations issued to recommend to national memorandum of understanding has been floated Governments ways in which human rights matters or the extent to which the DCA and the Scottish can be promoted within national states. I know that Executive have discussed it. I do not know you have all read the Paris principles whether that answers your question. assiduously—the University of Edinburgh has a Mr McFee: Not entirely, but I will come back to course on comparative law, so you have probably it. The question was about added value. read them in French. I was interested in what you said about the The Paris principles cover many of the aspects creation of the commissioner being in accordance that are contained in the bill. For example, the with the Paris principles. Is that the case or will a general duty to promote human rights does not lie gap in the UK bill simply be closed? The Paris 130 †240 2591 11 JANUARY 2006 2592 principles mention, for example, protecting and Michael Clancy: A general duty is given to the promoting human rights, but the bill is aimed commission in clause 3 of the UK bill: entirely at promoting human rights as opposed to “The Commission shall exercise its functions … with a protecting them. view to encouraging and supporting the development of a The third paragraph of the Law Society’s society in which … people’s ability to achieve their potential submission quotes the Paris principles: is not limited by prejudice … there is respect for and protection of each individual’s human rights”. “A combination of parliament and the judiciary only is imperfect as an apparatus for upholding fundamental However, that general duty is tempered by the rights.” provisions of clause 7. Clause 7(1) states: We would agree with that statement, but is it the “The Commission shall not take human rights action in society’s view that that combination is all that we relation to a matter if the Scottish Parliament has legislative currently have in Scotland? competence to enable a person to take action of that kind in relation to that matter.” Michael Clancy: Only the Parliament and the Therefore, clause 7 imposes a limitation on the UK judiciary? CEHR by excluding devolved competences to a Mr McFee: Yes. certain extent. However, clause 7(5) states: Michael Clancy: No. Other institutions, “Subsections (1) and (3) shall not prevent the including non-governmental institutions, are Commission from relying on section 13(1)(f) so as to act involved in upholding human rights. I would not jointly or cooperate (but not assist)”— gainsay the value of those institutions; indeed, I I am not entirely sure about the difference fully support many of them. between co-operation and assistance— Mr McFee: Given that you recognise that and “for a purpose relating to human rights and connected with that that was not made clear in the third paragraph Scotland.” of your submission, what added value would the In any event, if the CEHR wants to operate proposed commissioner bring? within Scotland, it will do so in conjunction with a Michael Clancy: One needs to look at the body that is established in Scotland, which I think powers that the bill will give to the commissioner. means the Scottish commissioner for human For example, the commissioner will be under a rights. duty to Mr McFee: So you argue that there would be a “keep under review … the law of Scotland, and … the gap if the Scottish Commissioner for Human policies and practices of Scottish public authorities”. Rights Bill was not passed. No such duty is imposed on NGOs, so that is a Michael Clancy: Yes. clear instance of how the commissioner will fill a gap that is not filled at the moment. No other Mr McFee: I want to get this absolutely straight, organisation carries out that kind of review on so let me paraphrase your argument. The Scottish such a broad scale. Although the Law Society of commissioner for human rights would add value Scotland attempts to comment on some aspects of by keeping the law of Scotland under review—I law reform, the society does not have the am not sure how an individual could do that—and resources—nor do my colleagues and I have the by promoting human rights in devolved-only energy—to keep under review the whole law of issues. Is there something wrong with the scope of Scotland. the area in which the commissioner will be able to work? Is that scope limited? Similarly, no other organisation is charged with the duty that is given to the commissioner under Michael Clancy: The commissioner’s scope will section 4, which provides that the commissioner be limited, but giving a body that is created by the may Scottish Parliament powers to reach beyond the Scottish environment would raise issues of “publish or otherwise disseminate information or ideas, … legislative competence. provide advice or guidance, … conduct research, … provide education or training”. Mr McFee: I might have confused you by using No other body is charged by statute to perform the word “limited”. In your submission, the second that function in relation to human rights. The sentence of the fourth paragraph states: commissioner will make a difference by filling that “It is inappropriate for the Scottish Executive to wholly gap. assume that responsibility as human rights issues, by their very nature, can involve challenges to the actions of public Mr McFee: I think that you said that, under the bodies such as the Scottish Executive.” UK bill, the UK commission for equality and For the benefit of the record, if for no other reason, human rights will be given the ability to promote will you explain what you mean by that? human rights. Will the UK commission be given the ability or the duty to promote human rights? 131 †241 2593 11 JANUARY 2006 2594

10:15 As a result, I argue that a human rights Michael Clancy: I was trying to express the commissioner should add something to the necessity for the body to be independent of the existing equation. However, their establishment Scottish Executive. Indeed, it is quite important should not create a hierarchy; it should not that it is not ruled by the Executive. I do not expect become what you might call the overall police it to be some all-powerful being—some statutory authority with regard to human rights. Do you Wotan—that will stand in between the citizen and agree? the Government. It will not provide justice in the Michael Clancy: Before I let Valerie Stacey take way that a court provides justice. However, we the stage to answer your question, I should say need a body that is independent of the Executive that I agree with you. I do not think that this body and which allows the citizen to have a voice on should be the ultimate source of all knowledge on human rights issues. human rights. Many co-operating bodies in Mr McFee: You say that the citizen must have a Scotland have a role to play in advancing and voice. However, under the bill’s provisions, the promoting human rights. commissioner cannot take up individual cases. Valerie Stacey (Faculty of Advocates): That is Michael Clancy: Indeed. correct. If the human rights commissioner is set up in the way that is suggested in the bill, it will not be Mr McFee: Is that not a deficiency in the bill? a policing body that ensures that everyone else is Michael Clancy: It might be. carrying out their duties. Mr McFee: I wonder how the citizen can acquire As members know, the bill, among other things, a voice if the commissioner’s powers to investigate places on the body the duty to review Scots law. a particular matter are somewhat limited. Mr McFee’s question about how that will happen is a good one. Presumably, a commissioner will Michael Clancy: We should remember that this consider a proposal and pursue certain matters will not be an Executive appointment and that the that he or she considers to be important. Parliament will have a lot of involvement in it. As a Moreover, under section 11, the commissioner will result, one could postulate that, because the have the duty to seek to intervene in civil commissioner is appointed by Her Majesty and proceedings if he or she thinks it appropriate and if funded by the Parliament, the citizen is connected the court agrees that such a move would be through Parliament’s mediation. helpful. I sense that you are not convinced by that The Faculty of Advocates suggests in its response. submission that, if this body is to be created, it Mr McFee: I suggest that that connection is might be useful to give it the ability to bring cases. somewhat tenuous. Mr McFee asked about that issue. Certain difficulties would be involved, because of the Michael Clancy: I accept that it is a wee bit definition of a victim in the Human Rights Act tenuous. 1998. However, empowering the commissioner to The Convener: Yesterday, we discussed this bring cases rather than simply to intervene in them matter with the Department for Constitutional could be a useful provision. Affairs and the Joint Committee on Human Rights As the convener suggested, the general idea of and exchanged some interesting views with MPs human rights is that they are supposed to pervade and members of the House of Lords. I have been our every word, thought and deed. Everything that concerned that some people who have made the everybody does and how they live their lives case for creating a Scottish human rights should be done in a way that has regard to other commission or commissioner have come to the people’s human rights as well as their own. table almost with the view that, if this body is not Human rights are not a separate compartment that established, we will not be able to deal people look into to find out what those who might independently with human rights and citizens’ be called the human rights people have to say on human rights will not be protected. However, I do an issue: we must all look at issues on a human not see it that way at all; I think that, so far, we rights basis. have done a good job. After all, we have had no successful challenges to any acts of Parliament. A Mr McFee: That is exactly the point of setting up range of bodies deals with human rights and, of a commission to deal specifically with the course, I would have thought that the Scottish Law promotion of human rights. Perhaps some of my Commission is as legally bound as we are to colleagues will ask where else but with a human review Scottish law in the context of the various rights commissioner responsibility for human rights pieces of human rights legislation, declarations should lie. and so on. There are many checks and balances The Convener: A subject that arose yesterday in the system. was the relationship between the UK bill and the 132 †242 2595 11 JANUARY 2006 2596

Scottish commissioner. The committee asked the However, the bill will create a commissioner in Department for Constitutional Affairs to look at the Scotland who will have responsibility over matter. We want to debate further the powers of a devolved issues only. We could argue that a commissioner to initiate judicial review culture of human rights will be promoted by the proceedings. The bill does not grant that power, CEHR Scotland committee based in Edinburgh. but the UK body, with the consent of the Scottish Moreover, the remit of the Scottish public sector commissioner, can take up an issue that has been ombudsman can include a human rights element. devolved to Scotland. The committee thinks that Would an alternative approach not be to merge there may be a technical issue in that. Would it be the remit of the proposed commissioner with that right for the Scottish commissioner to be able to of the ombudsman? give their consent for the UK body to initiate court Michael Clancy: The faculty has no policy on proceedings on a matter over which the Scottish that, but when we considered the matter we did commissioner has been refused power to act? not specifically compare the powers of the The Department for Constitutional Affairs said potential body with those of the Scottish public that that was not its intention, but the committee services ombudsman, partly because the bill had thinks that the bill’s drafting could allow that to not been published when we made our happen. You do not need to comment on that submission. When we reached our policy decision, issue now, but you might like to think it over. we were working on the basis of past consultation papers, so I do not have a specific view on the Michael Clancy: That is a very interesting point, comparison between the Scottish public services and I would like to think about it as it might involve ombudsman and the proposed new body. We took issues of competence. I do not think that the the view that a commissioner would be a useful intention of the bill is to circumvent the powers that addition and that having a specific identity for a the Scottish Parliament will give to a commissioner commissioner who would promote human rights, or that people should be able to weave their way as opposed to having other duties, would be a round a lack of power on the part of the good way for the culture of human rights to be commissioner. identified and furthered. If the commissioner had Christine O’Neill (Law Society of Scotland): too many duties—a merged body might fall into We say in our submission that it appears to us, that situation—the core purpose might get lost from the drafting of the bill, that such a scenario is among other functions. a possibility. The UK bill would allow the UK Marlyn Glen: There was concern about commission to take proceedings in Scotland in overlaps as well as gaps. circumstances in which the Scottish commissioner could not. It is for the Scottish Parliament to Michael Clancy: It will be extremely important decide whether to give the Scottish commissioner for the commissioner and other commissioners— the power to initiate court proceedings Parliament has taken the concept to heart and independently. The Law Society of Scotland thinks there are commissioners for a range of interests, it very odd and does not consider it a useful policy of which children and public services are just result that the UK commission could do in two—to work out a modus operandi that will Scotland what the Scottish commissioner could ensure that any overlaps are respected and not do. buffered away and that any gaps can be filled. The Convener: We agree with you. The The Convener: I turn to the relationship with the Department for Constitutional Affairs said that it courts. You might be aware that we had an was not its intention to oblige the Scottish interesting witness, Lord McCluskey, at our commissioner to circumvent their lack of powers previous meeting. In giving his succinct and by giving consent to the UK commissioner to act definite views, he was pretty much against the on their behalf. We may have to look at the idea of creating a Scottish human rights drafting of the bill to see whether we can rectify commissioner, on the grounds that the courts and the anomaly. other bodies have dealt quite well with human rights issues. Marlyn Glen (North East Scotland) (Lab): May I suggest an alternative approach? The Faculty of We asked Lord McCluskey why Scotland has Advocates argues in its submission that there is had proportionally fewer legal challenges on the currently no body with responsibility for the grounds of the European convention on human development of a human rights culture in rights. He refuted that, but we have substantiated Scotland. The New Zealand commissioner said evidence for it. Do you have any comment to that the New Zealand commission’s surveys make on why that would be the case? showed that 80 per cent of the public thought that Valerie Stacey: Do you mean Scotland having the Human Rights Commission was important or fewer cases in the European court? I did not quite very important. understand the question.

133 †243 2597 11 JANUARY 2006 2598

The Convener: Apparently, there have been is highly appreciative of it in certain circumstances. proportionally fewer legal challenges in domestic Scottish lawyers have taken to heart many courts in Scotland on the grounds of ECHR than aspects of the import of the ECHR, and that is there have been in courts in England and Wales. I shown in the number of devolution issues that wondered whether you could provide any account revolve around cases emanating from human of why that might be the case. rights questions. Not all such cases are successful, however. Valerie Stacey: I do not think that I can give you any useful evidence about the challenges that may Following the passing of the Scotland Act 1998, have been brought in England. I would not care to there would have been a sort of novelty quotient say that I was an expert on what cases have been about human rights issues and one would expect brought in England or on why the situation should that, over time, such cases might decrease in be different in Scotland. I know that there have number. The practitioners with whom I come into been many challenges on what I regard, broadly contact have a pretty high appreciation and speaking, as human rights matters in courts in knowledge of the ECHR, although that may not be Scotland since the Human Rights Act 1998 came others’ experience. Christine O’Neill, as a into force. You will know that there have been practitioner, may have had a different experience. challenges in both criminal and civil cases in Christine O’Neill: It is difficult for me to say, as I relation to a variety of things. There will, of course, have a particular interest in the field and, have been more cases in England, because it has therefore, would expect people to have the same a larger population than Scotland’s, but if you are awareness of human rights issues as I have. I telling me that there have been proportionally think that people’s awareness may be patchy, and more cases in England I am afraid that there is I am not aware of on-going awareness training in nothing I can usefully tell you about why that might all parts of Scotland for the legal profession and be. Perhaps Christine O’Neill has something to for those who work in the advisory sector. As say. Michael Clancy says, it depends on the sectors in which people work. Those who work in certain 10:30 sectors, such as criminal law, immigration and Christine O’Neill: I do not have any empirical housing, will be especially familiar with human evidence to offer. One thing that strikes me—just rights issues simply because they deal more as you ask the question and without my having frequently with public authorities, which are the thought about the matter in detail beforehand—is bodies that are subject to the ECHR. that there was, in the English legal system, prior to The Convener: I believe, as Michael Clancy the coming into force of the Human Rights Act suggested, that more than 300 devolution points 1998, a greater appreciation of the ECHR and have been taken on human rights cases in human rights issues than there was in Scotland. It Scotland, yet few of those cases have been is fair to say that, even prior to the coming into successful. Have you any concern about the force of the Human Rights Act 1998, the English judgments that have been passed? Do you think courts were more willing than the Scottish courts that the judiciary are not dealing with challenges to to entertain human rights arguments. There was a human rights? greater pre-existing awareness and culture around the ECHR in the English legal system than there Valerie Stacey: No, I do not think so. There was in Scotland prior to the coming into force of might be some cases about which any lawyer the Human Rights Act 1998, which gives some could say, “I don’t agree with that; I don’t think that explanation for the differential. I would not have was the right decision”, but I do not think that there expected the legal system in Scotland to turn is a general feeling among the profession that around entirely simply because the Human Rights judges are side-stepping or not dealing with the Act 1998 and the Scotland Act 1998 had been issue. passed. That is just an observation that may or Christine O’Neill has a particular interest in may not help. human rights, but most lawyers, even if they do The Convener: What is your view on the current not claim to have a particular interest in human attitudes of the judiciary and the broader legal rights, are well aware of the import of human rights profession towards dealing with human rights in whatever area of law they deal with. As issues? Christine said, lawyers in practices that deal with public law issues, of which housing, immigration Michael Clancy: The legal profession considers and crime are good examples, will be well aware the bringing of human rights into our domestic law of human rights. I can tell you from personal to be an extremely important development. It experience that those who practise other areas of features in university courses, it is taught in further law that are not obviously affected by public law education courses that are run by institutions such issues, such as personal injury litigation, have also as the Law Society of Scotland, and the profession had to consider human rights implications. 134 †244 2599 11 JANUARY 2006 2600

The Faculty of Advocates has run courses and not an argument that each group, with its held conferences on human rights for its members expertise, can keep human rights at the forefront? since the passing of the Human Rights Act 1998. Is that not a far more meaningful way of promoting We are all trying to see human rights as part of the human rights, rather than having a top-down fabric of the law, rather than as a separate section approach? of it. I dare say that there are young lawyers who Voluntary bodies, with their expertise, could be have just graduated who would not understand the funded to consider potential breaches. Is creating distinction, because they have been taught by a commissioner the best way to keep human Professor Murdoch and others that human rights rights at the forefront? We had a long chat about are part of the whole fabric of the law. Those of us that with the Westminster committee. For who graduated well before the Human Rights Act particularly English reasons, it thought that came in had to consider what it would do to our creating a commission was the best way to do practices. We are all reminded of human rights that. Human rights legislation is incorporated continually, because devolution issues are directly into Scots law, which makes a difference. frequently raised in cases; they might not be immediately obvious to lawyers, but they read Valerie Stacey: The faculty’s response to you is about them in other cases and learn about them. that the policy is a political question. We do not have a policy view, but we have tried to help by The Convener: Would it be helpful if the saying, “If you do this, this is what may happen.” commissioner could serve the court as an amicus curiae? Do you see value in that? If a commissioner were appointed, one of his or her duties would be to conduct consciousness Valerie Stacey: Yes, there might be something raising through training and so on. I have no doubt to be said for that. An amicus curiae is a friend of that the Faculty of Advocates could benefit from the court who is there to assist the court; they are that, but so could others who would not normally not a party and do not have a direct interest in the run training courses on such matters. I have read outcome of the case but are there to assist the some of the responses to the committee from court by putting forward whatever arguments various industry figures, who said that they might would help it in making a proper decision. It might find it useful if somebody had a duty to provide be that the new office of human rights training. I think that that is right. The more commissioner could be useful in that regard. knowledge one has about such matters, the better. The Convener: Is it your view that the Lord McCluskey, to whom the convener commissioner should have the right to intervene in referred, said in his submission that some a court decision? As the bill is drafted, they would voluntary organisations lack the funds to obtain have to seek leave of the court to intervene. good knowledge and training on such matters. Valerie Stacey: On balance, the faculty’s view You referred to funding in your question. Voluntary is that it would be correct for the commissioner to organisations would require funding to obtain seek leave to intervene rather than to have the training. The commissioner might provide a way to right to intervene. supply more knowledge generally in the community for voluntary organisations, industry The Convener: Is that the view of the Law and anybody else about what human rights mean Society? and the difference that they make to people’s Christine O’Neill: It is, although, as we said in lives. our written submission, we would wish to see Margaret Mitchell: That is interesting, because expanded the scope of the right to apply for leave Lord Judd said yesterday that Oxfam, for example, to intervene. We have pointed to the fact that the does not have the resources to do what it wants to bill does not allow the commissioner to apply for do. The voluntary sector appears almost to have leave to intervene in appellate proceedings in the thrown in the towel on arguing for resources to use House of Lords. its expertise to promote human rights. It thinks that The Convener: We will come to that later. it will not achieve that, but that a commission could make grants to voluntary organisations. A Margaret Mitchell (Central Scotland) (Con): I commission seems to be seen in England not as was interested in what you said about the Faculty the ideal but as a second-best approach that has of Advocates having training courses and keeping been considered because it has more chance of human rights at the forefront of what it is doing. success and of being implemented. It is interesting We heard from the committee at Westminster that that Lord Judd backed that view. is considering the establishment of a commission in England that keeping human rights at the Mike Pringle (Edinburgh South) (LD): forefront was what it wanted to achieve by creating Intervention in courts has been mentioned. I will the commission. Will the creation of a ask both organisations how they feel about commissioner in Scotland achieve that? Is there another point that Lord McCluskey made. I do not

135 †245 2601 11 JANUARY 2006 2602

know whether you have a copy of the bill in front of that one of the commissioner’s first you. Section 3, which is about the duty to monitor recommendations should be that everybody in law, policy and practice, says: Brussels and Westminster, and indeed maybe even here, should stop making law for a minute, “For the purposes of the Commissioner’s general duty, the Commissioner— whether acts or subordinate legislation. Even if that were the case, we have common law, which is (a) must keep under review— formulated and reiterated by the courts all the (i) the law of Scotland”. time. However, section 6(1) says: One has to look carefully at the duty, what it “The Commissioner may not, in the course of an inquiry means and how it can be complied with. As I said, (including the report of the inquiry), question the findings of even the law reform committee of the Law Society any court or tribunal.” of Scotland has 10 people working in it—six qualified people and four support staff. We cannot Does that not create a serious conflict? If the look at everything. Even with the assistance of the commissioner is to keep under review the law of office in Brussels, it is an impossible task to cover Scotland, which will involve a not inconsiderable every aspect of change that is being made to the body of evidence, will he have time for anything fabric of our law on a daily basis, whether by else? legislative institutions or by the courts. Michael Clancy: I will take the second question I am not sure whether if one were to fulfil that first. Christine O’Neill and I discussed what “the duty properly one would have no time to do law of Scotland” means. It might be a anything else. An agreement might have to be philosophical exegesis that is not appropriate for reached on prioritisation between the this place, but we will give it a shot. commissioner and the Parliament, but it will Section 126 of the Scotland Act 1998 talks about certainly be an awesome responsibility to Scots private law and Scots criminal law. That undertake. gives us a basis for considering what the phrase Valerie Stacey: I agree with Michael Clancy that might mean. The section says that Scots private the law of Scotland is a large question and that, if law includes created by the bill, the commissioner would have a “the general principles of private law (including private great deal to do. international law),” Section 3 concerns the duty to monitor law, the law of persons, the law of obligations, the law policy and practice. It requires the commissioner of property and the law of actions. That to keep under review the law of Scotland and formulation mirrors the arrangement of the allows him to recommend changes. That is a duty institutes of Justinian in almost every respect. The to look at the law, which, as Michael Clancy says, section also says that references to Scots private is found in all sorts of places. It means legislation, law include references to judicial review and that but what is decided in courts also counts as law. “References … to Scots criminal law include criminal So the commissioner would look at that and he offences, jurisdiction, evidence, procedure and penalties”. might recommend changes—as, indeed, can anybody. However, one would expect the That is a starting point for asking what the law of commissioner’s recommendations to have some Scotland is. However, the law of Scotland also weight. includes law that is reserved to the UK Parliament and which applies here. Schedule 5 to the 1998 Section 5 has a new heading of “Inquiries” and act provides for that. If we had another hour and a confers power on the commissioner to conduct half, I could read you that schedule. inquiries into the practices of: “(a) a particular Scottish public authority, 10:45 (b) Scottish public authorities generally, or However, that is not the end of it, because we (c) Scottish public authorities of a particular description”. are talking in the context of a bill about an organisation that is to be based on an international That is quite wide. The rest of the section sets out convention. There is a whole host of international what the commissioner can do. conventions and I include in that the treaties that Section 6 is headed “Restrictions as to scope of make up the European Union. inquiry”. It says that the commissioner Appointing a human rights commissioner would “may not, in the course of an inquiry (including the report of be a mammoth undertaking for anyone. One of the the inquiry), question the findings of any court or tribunal.” biggest tests for the commissioner will be how to I suppose that what that means—this goes back to manage compliance with the duty to keep under something the convener raised—is that it is not review the law of Scotland. I am tempted to say proposed that the commissioner should be able to 136 †246 2603 11 JANUARY 2006 2604 change decisions at his own hand, but he can look The comments that we have made about the at things, conduct an inquiry and make a report to scope of that power arise out of a concern to Parliament. No doubt that report would be of ensure consistency across the board and to interest and it might be influential, but the ensure that the power of intervention is logical in commissioner could not the change the outcome its application. We are not persuaded that any of a court case. clear justification has been given for excluding the commissioner from appellate proceedings. It might Under section 11, the commissioner would have be that you have that information and we do not. the power to intervene by making submissions in court. Once again, his submissions would no We suggest that appellate proceedings are doubt be of interest to the court. The way in which sometimes the most important stage of a court the section is drafted means that he may seek that case, at which this sort of intervention might be power only if he thinks it will be of assistance, and most useful. Often, it is only at the appellate stage the court is to grant it only if it thinks it will be of that issues are fully focused and it might be the assistance—so it is not to happen in every case. human rights issue that is fully focused only at that The court would no doubt listen and then make up stage. its mind having taken the commissioner’s Further, as we said in our submission, the submission into account but, once again, it is the commissioner might not become aware of the court that would decide. The provision is not issue that has arisen—and therefore be in a advisory; it is a matter of making a submission that position to take steps to intervene—until appellate would be of use to the court. proceedings take place because, obviously, they Mike Pringle: In view of what you have both just are more likely to attract press coverage and be said, is £1 million enough? reported in the law reports at that point. There is no duty in this bill that corresponds to that which is Valerie Stacey: In our response, we said— in the Scotland Act 1998: to require human rights Mike Pringle: I know what you said: I want it on issues to be intimated to the commissioner as the record. devolution issues are to be intimated to the law officers. Valerie Stacey: We have described the budget as being a little low. We would not for a moment suggest that there ought to be an obligation to intimate to the Mike Pringle: Michael? commissioner that human rights issues were being Michael Clancy: I do not think we made any raised by a court case—that would not be practical comment on funding, but if you want to give me £1 or desirable—but given that there is no such million I will review the law of Scotland. [Laughter.] obligation, we think that it would be appropriate to allow the commissioner to intervene at the Mike Pringle: There are six or nine people in appellate stage. your department who are already doing that. Mike Pringle: The Faculty of Advocates has Michael Clancy: And we do not cost £1 million suggested that or review the whole law. It would be a matter for the commissioner to work within whatever budget “the Commissioner might usefully seek to intervene in is set and to formulate a way of complying with the appellate criminal cases raising matters of principle.” duties that are set in the statute in accordance Can you expand on that? with the budget. Valerie Stacey: Since the Human Rights Act Mike Pringle: That is very diplomatic. 1998 came into force, the majority of devolution I have a question for the Law Society. Can you issues that have gone to the Privy Council have expand on the points you raise in your written been to do with criminal cases. They are called evidence about the restrictions in the bill that allow devolution issues but they are human rights intervention only in courts lower than the House of matters. The Faculty of Advocates takes the view Lords, the Privy Council or appellate courts? that if the point of a commissioner intervening in a court case is to make submissions from a Christine O’Neill: We have some concerns peculiarly human rights-related angle, it would be about the way in which the bill is drafted in relation useful if that could be done in those high-level to the power to intervene. We have said that, as a criminal appeals. matter of general principle, a power of intervention would be advantageous. If we are to have a I can give some examples of cases that have commissioner, we would support the concept of a gone to Lord Advocate’s references. I will explain commissioner with the power to intervene, with the what that means. If, in a criminal case, a person is leave of the court, in a way that would be of acquitted, put broadly, the Crown—the Lord assistance to the court. Advocate—cannot appeal that acquittal. That is an end of it as far as the accused person is

137 †247 2605 11 JANUARY 2006 2606

concerned. However, the Crown can seek the Margaret Mitchell: It would be an extension to court’s opinion, essentially, by a Lord Advocate’s the ombudsman’s role. She already deals with reference. human rights issues, but not to the extent that the proposed commissioner would. Giving her the The court will consider the particular case—it will commissioner’s powers would change the focus of not consider a hypothetical question—and make a her work a little bit. Hypothetically, would that be ruling. Its ruling will not affect the acquittal of the possible? particular accused—it is technically not an appeal, although it feels like one. It is the stage at which Michael Clancy: Well, the ombudsman is the important issues of principle are considered. certainly That is why the faculty is of the view that, if there “a person … established by Act of the Scottish Parliament”, is to be a commissioner who can intervene in cases, that would be a good point at which to so it is a question of whether intervene in appropriate cases. Intervention will “the person’s principal duties relate to human rights and are not be appropriate in every case. similar to any of the Commission’s” Mike Pringle: Do you have a specific example European convention on human rights duties or examples? under section 9 of the Equality Bill. One would Valerie Stacey: The proper definition of the law have to consider carefully how such a of rape was taken to Lord Advocate’s references remodulation of the public services ombudsman’s fairly recently. An example from some little time duties would result in human rights issues ago is whether killing someone by injecting them becoming principal duties. One could obviously with drugs is murder, culpable homicide or not a work that out on a piece of paper. crime at all. Margaret Mitchell: My next question is on Devolution issues that have been to the Privy clause 31(4)(b) of the Equality Bill, which concerns Council include the obligation to tell the police who judicial review. Before I consider the lack of such was driving when they ask, which arose in the provision in the Scottish Commissioner for Human context of driving while under the influence of Rights Bill, I ask for a bit of background on the drink. In that situation there is a statutory historical thinking against giving organisations the obligation to answer a question from the police, power to initiate a judicial review. In Scotland, it which people are not normally obliged to do has been hard for organisations to satisfy the title because they normally have a right of silence. and interest test. Mike Pringle: The examples that you give are clearly ones in which human rights might be 11:00 involved, so we should think seriously about your Christine O’Neill: All I can say about the proposal. historical background is that a line of cases that were decided by the Scottish courts has led to a Margaret Mitchell: I ask you to consider some situation in which it is difficult for organisations and of the implications of the references in the Equality representative bodies, rather than individuals, to Bill to the Scottish Commissioner for Human take judicial review proceedings. A recent example Rights Bill. The Scottish Commissioner for Human that members may remember was the Glasgow Rights Bill proposes to create a commissioner, but rape crisis centre’s attempt to take judicial review it has not yet been passed and it might be that no proceedings when the boxer Mike Tyson was such commissioner is created. Clause 7(4) of given leave to enter the country. One reason why Westminster’s Equality Bill says that certain the rape crisis centre failed in its attempt to consents would need to be sought and granted by achieve judicial review of the decision was “a person … established by Act of the Scottish Parliament” because of the law on title and interest, which relates to the right to take such cases and which is whose principal duties would be human rights simply a result of decisions of the Scottish courts. duties similar to those of the commission for The rationale that the courts have given for equality and human rights that the Equality Bill restricting title and interest is that someone who would establish. If we decided not to have a raises such an action ought to have a direct and commissioner, could the powers proposed for the personal interest in the proceedings that they raise commissioner be given to the Scottish public and that the courts ought not to entertain services ombudsman? Would the ombudsman challenges that are made by busybodies and satisfy the criteria in clause 7(4) of the Equality political organisations who want to use up court Bill? time to make political points through the legal Michael Clancy: I would have to write to you process. about that, because I do not have the Scottish By contrast, the English courts have been a little Public Services Ombudsman Act 2002 to hand. I more accommodating to representative reserve my opinion on that, if you do not mind. 138 †248 2607 11 JANUARY 2006 2608 organisations and have been more willing to allow some administrative action by an organisation them to take such cases. That is simply a such as a housing association or a licensing difference in approach and in the culture of the board. All sorts of things can be judicially courts, although I am sure that the English courts reviewed. The Court of Session has always had a would also say that they are not a forum for supervisory jurisdiction. The technicalities of how busybodies and political point making. However, one goes through the court rules for a judicial those courts have been more willing to say that, in review have developed significantly in the past 20 certain limited circumstances, it might be years, but there has always been such jurisdiction appropriate for a representative body or lobbying in Scotland. group to take such cases. Margaret Mitchell: That brings us to the two Margaret Mitchell: Is there any difference in pieces of proposed legislation under discussion. how judicial review is interpreted? In Scotland, Under the Equality Bill, the commission for judicial review relates only to the way in which equality and human rights will be given title. It is public authorities have made decisions, but clause implicit that the commission will have title and 31(3)(a) of the Equality Bill mentions an “unlawful interest to sue, but the Scottish commissioner for act”. Are we talking about the same thing? human rights will not. If the commission took up an issue that was not wholly reserved but contained a Christine O’Neill: I am in an extremely difficult devolved element, would that break new ground in position, given that the man who taught me about Scots law? Will the commission be allowed to do judicial review is in the room. something in the courts in Scotland that would not Margaret Mitchell: Do not be intimidated. be allowed at present? The DCA said yesterday that that was certainly not its intention. It did not Christine O’Neill: There are several differences want the Equality Bill to usurp the procedure on between the law of judicial review in Scotland and what is allowable in a Scottish court. that in England. To be fair, they are mainly procedural differences, for example, in the time Christine O’Neill: I am not entirely sure that I limits within which judicial review proceedings can am clear about the question, but I will try to be brought. On the type of bodies that can be answer it. I want to clarify the differences between challenged by way of judicial review, the Scottish English and Scottish judicial reviews. We have courts have in fact been more expansive than the said that there is greater restriction on the types of English courts have been. So while in Scotland the bodies that can take judicial review proceedings in type of people who can take cases is more Scotland than there is in England, but that in restricted, a broader number of bodies might be Scotland a wider range of bodies can be attacked attacked by way of judicial review. In England, through judicial review. The grounds for judicial many problems have arisen over the concept of a review in Scotland are similar to those in England public law decision, which tends to govern whether and I can see nothing in the proposed legislation judicial review proceedings can be taken in that would change that situation. England. However, in Scotland, the test is slightly The committee should be aware that at present wider. Historically, we have been well able to there are rules of court that allow parties to challenge proceedings of sports disciplinary intervene in judicial review proceedings in bodies—that has never been a problem in Scotland, if that is in the public interest. That is a Scotland, but it has in England. We have greater fairly recent change to the Court of Session rules scope for challenging decisions in Scotland. and I am not aware of those rules ever having Margaret Mitchell: It is interesting that the been used. Given that a power to intervene in definition is wider here, given that it is harder for judicial review proceedings already exists, aside organisations to get title to pursue judicial review. from anything that the bill says, any of us could Does Valerie Stacey have any comment on the apply to intervene and make submissions in a issue? human rights judicial review case if we thought that there was a public interest in doing so and if Valerie Stacey: Christine O’Neill is quite right in the court wanted to hear from us. what she says. There may be something of a paradox, in that although, traditionally, the Scottish What the Equality Bill will do that the Scottish interpretation of title and interest has been more Commissioner for Human Rights Bill will not do is restrictive than the English interpretation—I specifically empower the commission to act in that understand that that continues to be the case—the way. Perhaps we can turn things around and think definition of what one can take to judicial review is of the issue as being less to do with what the wider in Scotland. I do not know whether it helps courts will allow and more to do with what the to think of the term “judicial review” as being statutory powers of the respective bodies will be. If shorthand for judicial review of administrative the Scottish commissioner sought to use the action. That is what we are talking about. The existing rules of court to intervene in judicial phrase “judicial review” means a court’s review of review proceedings, his or her action might well be

139 †249 2609 11 JANUARY 2006 2610

ultra vires because the bill will not empower him or say. Nothing in the Scottish Human Rights her to do that. Commissioner Bill would prevent a Scottish commissioner from indicating to another body that Margaret Mitchell: So obviously the solution— it might want to look at something that is awry. The Convener: I draw the witnesses’ attention There is no such limitation in the bill. to clause 31(4)(b) of the Equality Bill, which relates Mr McFee: Surely including a requirement to co- to the issue that Margaret Mitchell raises, which I operate positively encourages such action. have already mentioned and which we asked the DCA about. The issue that the DCA is considering Michael Clancy: Yes, but it is about who is whether the commissioner that we might create initiates an inquiry. The Scottish commissioner could be granted consent to use the power that is must co-operate with the CEHR if a letter comes in in the Equality Bill. saying, “Will you give the CEHR consent to raise judicial review proceedings in Scotland?” The second issue that Margaret Mitchell raises is that in the Equality Bill, Westminster is Christine O’Neill: Clause 31(2) of the Equality legislating to allow all commission bodies— Bill clearly gives the UK commission title and including any Scottish CEHR commissioner who is interest in proceedings in Scotland. I do not think appointed—to use clause 31(4)(b), which that that subsection can be read in any other way. represents a departure from the normal court I am not sure that the rules on title and interest as practice. Clause 31(4)(b) states: developed by the Scottish courts fall within the concept of the practice of the courts. I am open to “subject to any limitation or restriction imposed by virtue of an enactment (including an enactment in or under an Act other views, but practice is more about procedural of the Scottish Parliament) or in accordance with the rules and how one conducts a case rather than practice of a court.” one’s legal entitlement to be involved in a case. I am not persuaded that clause 31(4)(b) detracts in We now wonder whether that is legally competent. any way from the general empowerment provision There are two issues. The first is whether it is in clause 31(2), which, on the face of it, gives the legally competent for a UK act to depart from the CEHR the power to do in Scotland something that practice of the Scottish courts by giving the CEHR, would normally be outside the rules on title and including any Scottish CEHR commissioner, the interest. power to act as a victim, if you like, where previously we have not allowed that. The second issue is that the commissioner that the Scottish 11:15 Commissioner for Human Rights Bill will create will The Convener: Yes. I think that the DCA not have that power. The question is whether the conceded yesterday that this is another instance Scottish commissioner could intervene anyway or of English wording. If we were drafting such a whether, as we are advised, the UK Parliament provision in Scotland, the wording would have to legislate for that. Do not worry; we “in accordance with the practice of a court” are not really expecting an answer. would not have been used. I think that the DCA Michael Clancy: That is comforting. If we go accepts that it may have to look again at the back to certain first principles, the UK Parliament wording. is a sovereign Parliament and can legislate for whatever it wants. Therefore, is there a question For the purposes of debate—to go back to first about the competence of the UK Parliament in principles, as Michael Clancy suggested—I allowing such action? Even if the legislation that wonder whether the question for us should be who the UK Parliament enacted were subsequently has the competence to determine whether the challenged under the Human Rights Act 1998, it rules on title and interest are a matter for the would still be valid. If it were found to be contrary Scottish Parliament under the devolution to the convention, it would be subject only to a settlement or one for the UK Parliament. Given declaration of incompatibility. Going on that first that we are talking about a development in principle, it is certainly possible for the UK Scottish common law, I am not wholly clear why Parliament to bestow on its creation such powers the power to determine that question is a UK one. as it sees fit. Until a court corrects that or issues a Is there an argument that says that we have the declaration of incompatibility, Whitehall ministers power to determine who has title and interest? might not be moved to change the position. I am Christine O’Neill: Of course, in terms of first not sure whether the Scottish commissioner could principles, the UK Parliament retains the power to use the commission for equality and human rights legislate on anything, even if the matter falls within almost as a surrogate or secret agent to deal with a devolved area. It is entirely open to the UK things that go on in Scotland by saying, “I cannot Parliament to make rules that vary Scots common do anything about this, but you might want to take law in relation to title and interest. That in itself is a look at it”. It would be a word to the wise, as they not particularly controversial. If the UK Parliament

140 †250 2611 11 JANUARY 2006 2612 has any doubt about whether a newly created raised by an individual. Developments have taken body should have that right, it can provide for that. place that make it easier for the voices of such However, the Scottish Parliament also has power organisations to be heard, so there may be less of to determine whether the Scottish commissioner problem. should have title and interest to intervene or raise Margaret Mitchell: Okay. Thank you. proceedings in their own right. Mrs Mary Mulligan (Linlithgow) (Lab): I have a The Convener: Right. That is helpful. The question for the vice-dean. In your submission, committee will have to give further consideration to you talk about the commissioner being able to the matter. Obviously, as the minister will be at litigate. I am not sure whether the examples you next week’s committee meeting, we can debate gave earlier might apply. In what circumstances the matter with him. One of the questions that we would it be desirable for the commissioner to be will put to him is whether, in parallel with the UK able to litigate in his or her own name? interest in taking title to sue for the UK commission, it may be legally competent for the Valerie Stacey: Our answers to question 2, Scottish Parliament to look at the question in which were certainly quite brief, would indicate respect of devolved issues. what we think about that. There may be situations in which an individual is not empowered to take a Michael Clancy: The Equality Bill has already case due to lack of funding. It might be useful in been the subject of a Sewel motion. such cases for the commissioner to be able to be The Convener: Yes, but only in relation to the a party. powers on which we have agreed to give consent Mrs Mulligan: Is that the only example? to the UK Parliament to legislate for the time being, which are the promotional duties—nothing Valerie Stacey: No. I imagine that there could else. Even if we agree to a Sewel motion, that be many others; that is the example that we have does not prevent us from taking a different given in our submission. The difficulty with decision later—it does not hold for ever. litigation is that, for some people at least, it is a voluntary activity. One does not have to litigate, Michael Clancy: I will be advised by you, although an accused person has no choice. There convener. must be individuals out there with interesting Margaret Mitchell: If we create a commissioner questions that are not being resolved because and give them the power to raise judicial review they do not wish to litigate. There may be proceedings, would that open up a Pandora’s occasions on which the sort of body that is box? Would other organisations take it as a envisaged in the bill would, in the public interest, precedent to seek title and interest? Would it consider a matter and take it further if an strengthen their case? individual, for their own reasons, does not wish to litigate. Valerie Stacey: I expect that it might encourage others to seek to say that they should have title Mrs Mulligan: That is helpful. Thank you. and interest. I imagine that they might like to do Mr McFee: In your reading of the bill, is there that. Whether it would strengthen their case is anything to prevent the commissioner from another matter. As Christine O’Neill outlined, the providing funding to an individual who wished to law has looked at title and interest over many litigate, as opposed to the commissioner taking the years. Title and interest is given by statute; it is a case on directly? political decision. I am not sure whether such a provision would strengthen anyone’s argument in Valerie Stacey: There is no direct power to do law, but it might lead to organisations seeking to that; however, you have asked me the obverse— say that they too should have title and interest. whether there is anything to prevent his or her doing that. My reading of the bill is that it is not the Margaret Mitchell: We are talking about a third- intention that the commissioner would do that— party right, not the direct right of the victim. Mr McFee: Other than financial, perhaps. Valerie Stacey: Yes, that is correct. Although the commissioner has no direct interest in the Valerie Stacey: Yes. Are you thinking of the case—they are not the victim of anything—they commissioner making a grant available for such can say that they have a general interest in the things? matters that are being raised. Mr McFee: Yes. Something of that nature, when Christine O’Neill: The situation is possibly there is a public interest. ameliorated by the fact that we now have rules of court that allow intervention by such organisations. Valerie Stacey: I do not think that the bill says that the commissioner cannot provide funding to For example, although the Glasgow rape crisis centre is unable to raise proceedings on its own an individual, but neither do I think that he or she behalf, it can intervene in proceedings that are is empowered to do so. The commissioner will be 141 †251 2613 11 JANUARY 2006 2614

a statutory creation; the role will not exist unless it Christine O’Neill: Yes. is created by statute, and the statute will set out The Convener: This has been a useful what the commissioner is empowered to do. I exchange. The debate about the constitutional would have thought that they would not have the issue has been helpful, although it was not power to provide such funding. conclusive. It might never be conclusive—who The Convener: My question is for the Law knows? We would be happy to keep you in touch Society. You say in your submission that you are with our discussions with the Department for not clear why the power to intervene does not Constitutional Affairs on that point, if you are cover cases in the children’s hearings system. You interested. I thank the Law Society of Scotland are not the only witnesses to have said that. If that and the Faculty of Advocates for their invaluable power were granted, how do you envisage that it contribution to our consideration of the bill at stage might work? 1. Christine O’Neill: It would work simply in the We agreed previously to take the next item in same way as it would work in other legal private in order to discuss the issues that have proceedings. That is not a trite response, but I arisen so far and to consider what we might put in anticipate that, in cases in which a matter that our stage 1 report. arises in children’s proceedings comes to the attention of the commissioner, the issue will be that of how such matters are brought to the 11:26 attention of the commissioner. If the commissioner Meeting continued in private until 13:05. felt that there was some public interest in intervening, he or she might seek to do so, but in principle, that is no different from the type of intervention that might take place in other proceedings. I do not think that any of us anticipates that the commissioner would intervene every week of the year. It would happen infrequently and in exceptional cases. The Convener: That is what I wondered. How would the commissioner know when to intervene, given that there are so many children’s hearings, and that they are local and informal? If it was a big, systemic issue, the children’s commissioner might have picked it up anyway. People often know about the big civil cases, but obviously there are fewer such cases, so it is easier for the commissioner to think about whether he or she might want to intervene in the process. Christine O’Neill: The volume of cases is not just a problem for children’s hearings; we could say similar things about immigration decisions or what might be described as common-or-garden criminal proceedings. That takes us back to the point that we made about intervention at the appellate stage. It is often only at that stage that a case comes to public attention, and it may be only at that stage that the commissioner becomes involved. Moreover, if the commissioner’s general duty is to promote awareness, it ought to be part of the exercise of that duty to make aware people who represent children in children’s hearings or people appealing immigration decisions that the commissioner may be interested in becoming involved in the process. The Convener: If the power to intervene applied to appeal cases, do you envisage that the human rights commissioner’s involvement would depend on whether the court thought that the commissioner would have something useful to add? 142 †252 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

3rd Meeting, 2006 (Session 2), 18 January 2006, Written Evidence

SUBMISSION FROM THE SCOTTISH PARLIAMENTARY CORPORATE BODY

Thank you for your letter of 10 October on behalf of the Justice 1 Committee seeking the Scottish Parliamentary Corporate Body’s (SPCB) views on the Scottish Commissioner for Human Rights Bill which was introduced to the Parliament on 7 October 2005.

As the Committee will be aware, the Parliament has passed legislation establishing similar officeholders (e.g the Scottish Public Services Ombudsman Act 2002) over the last three years and the SPCB has had a role with regard to setting the officeholder’s terms and conditions of appointment, assisting with the setting up of the new offices, meeting the costs incurred by the officeholders and scrutinising budgets prior to them being approved by the Finance Committee. Drawing on this experience, we offer the following comments:-

General

We agree that in order for the Commissioner to be seen to be independent in the exercise of his/her functions from Scottish Ministers that he/she should be accountable to the Parliament; that the Parliament should undertake the recruitment of the Commissioner under Standing Orders and that the successful candidate should be nominated by the Parliament for appointment by Her Majesty; that the Commissioner’s budget should be determined by the SPCB; and the Commissioner should submit an annual report and other reports to the Parliament.

We do however consider that there may be merit in allowing for a transition period of up to 4/6 months to allow the Commissioner to set-up his/her office including finding office accommodation, recruiting staff and considering his/her policy direction before the remaining provisions of the Act are enacted.

We note that the general function of the Commissioner will be to promote awareness and understanding of, and respect for, human rights and as such, the Commissioner will have a promotional role similar to that of the Commissioner for Children and Young People in Scotland. As human rights covers people of all ages there will be an overlap between the Scottish Commissioner for Human Rights and the Commissioner for Children and Young People and it is envisaged that the relationship between the two Commissioners will be agreed in a Memorandum of Understanding. In light of this, the SPCB considers there should be opportunities for collaboration between the two Commissioners, be it the sharing of information or a shared research project which will result in savings.

We also note that the Commissioner will be able to conduct inquiries and must lay a report of the inquiry before the Parliament. We note that the Financial Memorandum does not contain financial provision for undertaking such inquiries, and we will ensure this, and similar financial issues, will be highlighted to the Finance Committee who have also invited the SPCB to submit evidence on the Financial Memorandum.

Specific

Section1(3 and 4) – Scottish Commissioner for Human Rights - provide that up to two deputy Commissioners may be appointed by Her Majesty on the nomination of the Parliament. What is not clear from the proposed legislation is who shall take the decision on how many deputy Commissioners should be appointed. Should it be a matter for the selection panel undertaking the appointment of the Commissioner or will it be for another body, possibly the SPCB to reach that decision. We consider that this should be clarified, possibly on the face of the Bill.

Section 3 – Duty to Monitor law, policy and practice - while it is not directly relevant to the SPCB, it is not clear on the face of the Bill to whom the Commissioner would recommend changes to the law.

143 †253 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

Section 4 – Information, guidance, education etc. - we welcome the clarity of the funding element of this clause and note that any fees received by the Commissioner should be used for information, guidance and education etc. thereby reducing the need for additional funding from the SPCB.

Section 9 – Report of Inquiry – we note that inquiry reports are to be laid before the Parliament but this does not apply to an excepted inquiry. It would be helpful to clarify on the face of the Bill what is expected to happen to these excepted inquiry reports.

We acknowledge, as mentioned in the previous paragraph, that inquiry reports are to be laid before Parliament. Once laid, it will be a matter for Parliament as to what happens to such reports. On consideration of the reports the Parliament might wish to take some form of action and the Committee might wish to consider at an early stage whether there needs to be any changes proposed to the existing parliamentary procedures to enable such action to be progressed.

Section 12 – Annual Report - we are content that the Commissioner must lay an annual report before the Parliament and that the SPCB may issue directions to the Commissioner as to the form and content of the report. This is similar to the existing legislation for other office-holders funded by the SPCB.

Schedule 1, paragraph 4(1) – Terms of office and remuneration - we are aware more public appointments are now for a longer single term duration of about 8 years thereby dispensing with the reappointment for a second term. This is in line with best practice and guidance issued by the UK Commissioner for Public Appointments and endorsed by the Commissioner for Public Appointments in Scotland. This might be something the committee might wish to reflect upon.

Schedule 1, paragraph 4(2) – Terms of office and remuneration - we consider that grounds for removal should be set out in legislation such as those in the Commissioner for Children and Young People (Scotland) Act 2003 which provide that the grounds for removal are (i) that the Commissioner has breached the terms of appointment or (ii) that the Parliament has lost confidence in the Commissioner’s willingness, ability or suitability to carry out the functions of the office. This provides clarity to the office older.

Schedule 1, paragraph 10 – Location of office - we consider this provision to be very helpful. We will ensure that the Commissioner has considered relevant location policies and the option of co-locating with other office-holders to enable the sharing of services resulting in efficiency savings.

Schedule 1, paragraph 11 – Chief executive and staff – we welcome the provision that enables the SPCB to approve the numbers of staff that might be appointed. In terms of value for money the SPCB will be looking to see whether there is scope for the sharing of staff between those office holders already established to share administrative services such as human resource, finance support staff etc. thereby saving money and this provision will assist with that aim.

Schedule 1, paragraph 12 – Accountable Officer – in line with legislation establishing other office-holders funded by the SPCB we take the view that the SPCB should appoint the Accountable Officer and that as with the other Commissioners, the Accountable Officer should be the Commissioner him or herself who will be accountable to the Parliament for ensuring that the resources are used economically, efficiently and effectively.

The committee might also wish to consider whether or not the Commissioner should be covered by the Freedom of Information (Scotland) Act 2002 and the mechanism to achieve this and also, as a public authority in its own right, whether the office will come under the jurisdiction of the Scottish Public Services Ombudsman and whether or not this needs to be covered by the legislation.

George Reid MSP

144 †254 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

Presiding Officer 17 November 2005

SUBMISSION FROM THE SCOTTISH EXECUTIVE

Thank you for your letter of 23 December about the Scottish Commissioner for Human Rights Bill. You asked for comments on a number of issues, so perhaps it would be helpful if I dealt with each of those in turn.

Functions of Commissioner

Human rights affects everyone in Scotland, and all public authorities in Scotland are obliged to take account of human rights in the exercise of their functions. Of course, there is already a wide range of persons and bodies with functions relating to investigations, complaints- handling, promotion of rights etc for whom human rights is relevant in relation to the exercise of those functions. But there is at present no statutory person or body whose express purpose is to promote human rights and in particular by doing so to help secure that human rights are respected across the whole range of public sector activities in Scotland. It is to fill that gap that the Executive has proposed the creation of a Scottish Commissioner for Human Rights.

You asked for details of the duties and powers of all statutory commissions, ombudsmen, tribunals etc in relation to devolved matters that have a locus in the human rights field. There is a large number of such bodies of varying size and width of remit and it would be neither practical nor helpful to attempt a comprehensive assessment of all of them. I therefore attach a table to this letter setting out the main statutory persons and bodies in this area, which I hope will be helpful.

It is also important to note that the role of the Commissioner is envisaged as being essentially proactive, that is the Commissioner’s activities would primarily be driven by priorities determined by the Commissioner him or herself within the framework of his or her general and specific duties and functions. This contrasts with a complaints-handling role such as that performed by the Scottish Public Services Ombudsman, which is essentially reactive since it is dictated by the need to respond to whatever complaints are raised and is limited to the subjects raised in such complaints. Much of the Commissioner’s work will also be generic or sectoral in nature.

On relations between the Commissioner and other commissions, etc more generally, we have said that the Scottish Commissioner would be expected to enter into a memorandum of understanding with the Commission for Equality and Human Rights (CEHR) to be established by the Equality Bill presently being considered at Westminster, to set out how the Commissioner and the CEHR would work together on matters of mutual interest. Similarly, we would expect the Scottish Commissioner to enter into similar arrangements with other relevant interests such as the Scottish Commissioner for Children and Young People and the Scottish Public Services Ombudsman. The precise form and content of such arrangements would not be dictated by the Executive but rather be for the Commissioner and the other persons or bodies concerned to agree amongst themselves, although the Executive would of course be willing to offer advice and assistance in that connection if asked to do so.

I would stress that none of the other Commissions and similar bodies have a specific remit to look at human rights issues, although these could often arise incidentally in their work.

I would also point out that existing commissioners, ombudsmen etc could themselves be among the beneficiaries of the work expected to be carried out by the Commissioner. Securing the mainstreaming of human rights within their activities is as important for them as it is for public authorities generally, and by working with them to that end the Commissioner should be able to help them fulfil their functions more effectively.

145 †255 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

Relationship with the courts

As you mention in your letter, the Bill would give the Commissioner power to intervene in court proceedings in civil cases: you queried why children’s hearings are explicitly excluded from this provision. I have noted with interest the evidence on this point given to the Committee by the Commissioner for Children and Young People in Scotland and by the Scottish Children’s Reporter Administration. This is a complex issue and I recognise that there are arguments on either side. Nonetheless, our view remains that exclusion of children’s hearings from the intervention provision is appropriate.

That view does not stem from any belief that human rights issues cannot arise in children’s hearings. We agree with the Commissioner for Children and Young People that it would seem possible that such issues could arise. Instead, the exclusion of children’s hearings from the intervention power stems from the rationale for including the intervention provision on the face of the Bill.

To explain: the intervention provision (section 11 of the Bill) gives the Scottish Commissioner power to intervene in court proceedings. This express provision has been inserted to remove any doubt that the Scottish Commissioner would be able to undertake such intervention. The Scottish Executive wishes to avoid the possibility of a similar situation arising to that which occurred in Northern Ireland, where, in the absence of an express statutory power for the Northern Ireland Human Rights Commission to intervene in court proceedings, the Commission had to take a case to court (eventually reaching the House of Lords) to establish that it did in fact have the capacity to intervene. Section 11 is thus essentially a “for the avoidance of doubt” provision, to ensure that the Scottish Commissioner would not encounter similar difficulties by being prevented from intervening in a case simply because of questions as to whether it had the ability in law to do so.

Therefore, the aim of section 11 is not to create an entirely new ability to intervene in court proceedings where no such ability currently exists, but rather to ensure that the Commissioner can intervene in circumstances where intervention by third parties in general is already possible. That is the case as regards civil proceedings in the Scottish courts, although it appears to be extremely rare in practice. However, there is at present no scope at all for such intervention in criminal proceedings or in children’s hearings. Creating any such right would be a fundamental and far-reaching change to the nature of such proceedings, especially since it would raise the question of whether third parties in general should be able to intervene in such cases. Accordingly, the Executive remains of the view that it would not be appropriate for the Scottish Commissioner for Human Rights to be given a power to intervene in criminal proceedings or in children’s hearings.

As provided by section 11(8) of the Bill, the explicit intervention power would be without prejudice to the Commissioner’s capacity to intervene in any proceedings under an enactment or the practice of the court or tribunal. Therefore, if a general right for third parties to intervene in criminal proceedings or children’s hearings was to be created at any time in the future the Commissioner would be able to take advantage of it. In its submission to the Committee, the Scottish Children’s Reporter Administration questioned whether this would be sufficiently clear to a court. However, we would expect that if, in such circumstances, the Commissioner was to seek to intervene in a case the relevant court (or tribunal, or hearing) would either already be aware of the terms of section 11(8) or would be made aware of it by the Commissioner in his or her request to intervene. I would add, if only by way of clarification, that while children’s hearings are indeed classified as civil proceedings under Scots law they do have some aspects that are more akin to those of criminal proceedings. In particular, children’s hearings often deal with offence-related matters and can impose compulsory measures of supervision. Also, criminal cases can be sometimes referred to children’s hearings by the criminal courts for advice or a decision, and so a hearing can play a direct role in the criminal justice process. The European Court of Human Rights has a well-established rule that, in considering whether proceedings are to be considered as civil or criminal for the purposes of the European Convention on Human Rights, the entire purpose and nature of the proceedings should be taken into account and not just their classification under domestic law. Therefore, the fact that children’s hearings are

146 †256 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D classified as civil proceedings under Scots law would not necessarily be definitive in determining how they should be considered in respect of human rights.

Extent of powers

You raised three sets of issues under this heading.

Firstly, you asked for more information on why it was not felt to be appropriate to give the Commissioner powers to investigate complaints by individuals; to bring legal actions in his or her own name; and to enforce the findings of inquiries.

The Bill describes the general duty of the Commissioner as being to promote awareness and understanding of, and respect for, human rights. The Executive therefore sees the Commissioner’s role as essentially being promotional, awareness-raising and advisory in nature. We believe that this is how a Commissioner would best contribute to the creation of a human rights culture in Scotland. Giving the Commissioner the additional functions of either raising legal actions in his or her own name and/or investigating individual complaints would in our view detract from that key role: experience in other jurisdictions has shown that conferring such functions on human rights institutions can lead to the institution having to devote a substantial and increasing proportion of its resources to such casework activity at the expense of its core activities. Further, giving the Commissioner a function of investigating individual complaints would risk duplicating complaints-handling activity already undertaken by existing bodies or persons such as the Scottish Public Services Ombudsman, as the Ombudsman herself has pointed out in her evidence to the Committee. Rather, we believe that the added value that the Commissioner for Human Rights would provide in this area would be maximised by the Commissioner’s role being focused on promotional, awareness- raising and advisory activities since that is where the greatest gap presently exists.

So far as enforcing the recommendations of inquiries is concerned, that would seem to be inconsistent with the concept as set out in the Bill of inquiries being into policies and practices rather than individual cases. The arguments set out above against giving the Commissioner a complaint-handling role could therefore apply here too. In any case, if the findings of inquiries were to be legally enforceable that could in effect give inquiries a quasi-judicial nature. That would mean inquiries having to be conducted in a much more formal and indeed legalistic way than is presently envisaged, with for instance a likely need for interested parties to be legally represented in inquiry proceedings. That would of course have significant resource implications for both the Commissioner and the public authorities being investigated, one consequence of which might be to reduce the number of inquiries that the Commissioner could hold (since each inquiry would probably take longer and require more resources to conduct). Finally, any recommendations of an inquiry should by the simple fact of being published by the Commissioner carry significant weight and so any public authority affected by such recommendations would be expected to respond to them. The Executive believes that this should be sufficient to secure change where that is necessary without the need for a legal mechanism for enforcement. The Scottish Public Services Ombudsman pointed out in her evidence to the Committee in relation to inquiries conducted by her office that it is up to Parliament to enforce any recommendations that such inquiries may make and to hold people publicly and democratically accountable. I believe that the same principle should apply to the Scottish Commissioner for Human Rights.

It is also important to note that our advice is that the Scottish Parliament could not confer a power on the Scottish Commissioner to raise legal actions in his or her own name, since that would go against section 7(1) of the Human Rights Act 1998 (which provides that an action relating to human rights is only competent if the litigant is a victim or potential victim). Paragraph 1(2)(f) of Schedule 4 to the Scotland Act 1998 precludes the Scottish Parliament from amending the Human Rights Act. Also, section 100(1) of the Scotland Act 1998 states that the Scotland Act does not enable a person to bring an action in court and rely on a breach of Convention rights unless the person is a victim or potential victim of the breach. So it is thought that seeking to disapply the victim test by conferring a power on the Commissioner to raise legal actions arising from alleged breaches of human rights in his or her own name would almost certainly be outwith devolved competence.

147 †257 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

The Executive believes firmly that a Scottish Commissioner for Human Rights with the functions and powers set out in the Bill would be able to make a significant contribution to the creation of a human rights culture in Scotland. I appreciate that there have been calls from a number of quarters for the Commissioner to have additional powers; but our proposals have received broad support from a wide range of interests and I have been encouraged to note most of those who have submitted evidence to the Committee have agreed that a Commissioner as proposed would add significant value to the existing arrangements for promoting and protecting human rights in Scotland.

Secondly, you asked what there would be to prevent the Commissioner once he or she was in post from deviating from the terms of reference set out in the Bill. I am not entirely clear what is meant by “terms of reference” in this context; but I think the essential point is that the Commissioner would only have the functions and powers conferred on him or her by the legislation establishing the post of Commisisoner. Any extension to those powers or functions could only come about through further legislation to amend the original provisions.

Finally, you asked why the Bill does not include provisions to place the Scottish Commissioner under a statutory duty to prepare a strategic plan, and for that plan to be periodically reviewed and consulted on, similar to those for the Commission for Equality and Human Rights contained in the Equality Bill. The short answer is that there is not thought to be any need for such a provision. Section 12 of the Bill would require the Commissioner to lay an annual report before the Parliament, and section 12(2) provides that this report must include a summary of the action which the Commissioner proposes to take in the next reporting year in pursuance of his or her general duty. In addition, section 12(3) provides that the Commissioner must comply with any directions given by the Parliamentary Corporation as to the form and content of reports. There is nothing in the Bill that would prevent the Parliament asking the Commissioner to produce a strategic plan or similar document if that was felt to be desirable.

I would add that the duty in the Equality Bill to prepare and consult on a strategic plan stems mainly from the equality remit of the proposed GB Commission, and in particular a desire to ensure the Commission would take on board the need to serve each of the equality strands, such as racial equality and disability rights, as effectively as possible and to maintain a focus on the needs of each strand. This was seen as necessary given that the Commission is to take over the functions of each of the existing statutory equality commissions, such as the Commission for Racial Equality. There is felt to be a need to ensure that the needs of all of the groups served by those commissions are fully taken into account. However that is not a consideration for the Scottish Commissioner, who will not have specific functions relating to the statutory equality framework as that is a reserved matter.

Definition of human rights

You asked why there is a need for the Scottish Commissioner for Human Rights to promote awareness and understanding of rights under instruments other than the European Convention on Human Rights, and whether this might dilute the Commissioner’s promotional work in relation to the ECHR.

The rights contained in other international instruments do have a bearing on Scottish public authorities in a number of ways. Firstly, as a general principle, in signing and ratifying these instruments the UK has accepted the conditions set out in them. The UK is therefore obliged to uphold them, even if they are not directly enforceable through the courts; and under the Scotland Act responsibility for observing and implementing international obligations is devolved. It is therefore thought appropriate that the Scottish Human Rights Commissioner should be able to promote awareness and understanding of such instruments to help reduce the risk of Scottish public authorities failing to comply with them and so of the UK being found to be in breach of its international obligations.

Although these conventions cannot be enforced in domestic law, Scottish public authorities more generally can have their compliance with them publicly scrutinised. For example, the European Convention for the Prevention of Torture (ECPT) includes provisions to allow a

148 †258 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D monitoring committee to visit places of detention and make a report on its findings and opinions. The last such visit to Scotland was in 2003 when the European Committee visited HMP Barlinnie, Helen Street Police Station and the State Hospital at Carstairs. Additionally, some of the instruments include protocols that give rights of individual petition, which allow individuals to make complaints directly to the international committee responsible for overseeing the relevant convention. The UK recently ratified the protocol that gives such a right of petition in relation to the Convention for the Elimination of Discrimination Against Women (CEDAW). The UK is generally not a signatory to similar protocols to other conventions, but this may change in the future. The Commissioner could therefore also have an important role in making public authorities more aware of what they may be called upon to do, in connection with monitoring of compliance with such international human rights instruments.

Indeed, national human rights institutions often participate directly in international monitoring procedures, briefing the relevant monitoring committees and advising State parties on how to meet their obligations between hearings. This is widely recognised as being a key function of such institutions, for instance under the UN’s Paris Principles, and we believe that the Scottish Commissioner should be able to participate fully in such activity. In addition to the general inclusion of international instruments in the Commissioner’s remit, the Bill therefore also includes specific provisions that would allow the Commissioner to play a role in relation to the UN Convention Against Torture, which has one of the most complex monitoring procedures of any of the international conventions, and the ECPT.

Finally, other international instruments can as appropriate be referred to by the courts when considering cases involving the ECHR. For example, during proceedings in the Napier case relating to slopping out in prison, which included consideration of whether Articles 3 and/or 8 of the ECHR had been breached, reference was made to a wide range of such instruments including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the United Nations Standard Minimum Rules for the Treatment of Prisoners, the United Nations Body of Principles for the Protection of All Persons Under Any Form of Protection or Imprisonment, the European Prison Rules, and certain Council of Europe Economic and Social Council Resolutions. Therefore, even though such other instruments have no direct legal force in Scotland they can be used to help inform consideration of actual or potential legal issues that may arise under the ECHR; and thus the advice and guidance that the Commissioner would provide could be incomplete if he or she was not able to take those other instruments into account.

Budget

You asked in your letter how inquiries by the Commissioner would be funded, particularly given the figure of £225,000 given in the Financial Memorandum for spending on promotion and awareness-raising. First of all, I would emphasise that the budget lines described in the Financial Memorandum, including the figures given for promotion and awareness raising, are purely illustrative. As explained in the Financial Memorandum, they are only estimates to give an example of how the Commissioner’s budget might look, and to demonstrate why the Executive considers an annual budget in the order of £1 million to be appropriate, rather than to prescribe exactly how such a budget should be spent. The exact structure of the budget will depend on decisions made by the Scottish Parliament and the Commissioner.

We believe that distributing the Commissioner’s proposed £1million a year budget to existing NGOs to work with public authorities in meeting best practice would be problematic give the scarcity of specialist human rights NGOs in Scotland. The number of Scottish human rights NGOs recently declined further when the Scottish Human Rights Centre, which was one of the most significant Scottish human rights campaigning organisations, regrettably closed its doors recently due to lack of funds. It is therefore highly questionable whether the NGO infrastructure exists, or could be readily created, to fulfil the role proposed for the Commissioner.

In any case, we do not think that NGOs could perform that role. For instance, many of the more subject-specific NGOs in Scotland, such as those dealing with equality, disability, victim

149 †259 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

support and so on, do not have thorough knowledge of human rights as described in the ECHR and other instruments. Many voluntary sector bodies themselves have called for better access to specialist human rights advice, which they often find necessary in order to meet legal obligations when providing services in conjunction with public authorities. The Commissioner would provide a means of supplying that need in a co-ordinated and consistent way. Most NGOs exist to serve the interests of particular groups and so could not be expected to provide advice, guidance etc across the board in the same way as the Commissioner would do. There would be a risk of groups who are not represented by strong NGOs missing out in comparison to those who are, whereas a Commission would exist to serve the interests of the public as a whole.

Another point is that an important element of the Commissioner’s functions would be the ability to conduct inquiries. It is proposed to give the Commissioner legal powers to obtain information and to enter places of detention for the purpose of conducting such inquiries. However, it would be neither feasible nor desirable to confer such powers on NGOs, who are by definition unaccountable save to their own members. It is in any case questionable whether any inquiry by an NGO could be perceived as having the same authority and assurance of independence as an inquiry by an independent Commissioner.

Human rights is now an established part of the Scottish legal and social landscape, but specialist advice and guidance is hard to come by in Scotland despite some examples of excellence in the voluntary sector, the legal profession and academia. A statutory Human Rights Commissioner would provide a stable, independent and authoritative source of advice and expertise, backed up by additional powers of inquiry which are not available to NGOs or private practitioners. The Commissioner would therefore supplement and enhance the work of NGOs, and we would expect the Commissioner to work closely with NGOs as well as with public authorities and other relevant interests. To revert to a point made earlier, we believe that this would provide added value to a far greater extent than simply conferring the functions, powers and/or budget proposed for the Commissioner on existing persons or organisations.

I hope this is helpful, and look forward to seeing you and your fellow Committee members on the 18th.

ROBERT BROWN MSP Deputy Minister for Education and Young People January 2006

150 †260 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

The following table summarises the remit and powers of the main statutory commissions and other bodies in Scotland that have investigatory, reviewing or complaints-handling functions with a potential locus in relation to human rights. It is not intended to be a comprehensive list of such entities.

Body Remit Complaints handling role and powers General inquiries role and powers Scottish Public The SPSO may investigate The SPSO has powers to gather None. Services complaints about evidence for investigations, which are Ombudsman maladministration or service the same as those for the Court of failure by Scottish public Session in respect of the attendance authorities. and examination of witnesses and the A listed authority may also production of documents. request an investigation by the SPSO where there has been public criticism of an authority but, as no complaint has been made to the Ombudsman, she cannot investigate. Scottish The Commissioner has a Individuals can apply to the None Information general duty to promote good Commissioner if they feel that a Commissioner practice among public request for information has not been authorities in relation to FoI handled properly by a public and to enforce the terms of authority. The Commissioner may the Act. issue a notice to the public authority specifying what steps it should take in order to comply. If the authority refuses to comply with the notice, the Commissioner may refer the matter to a Sheriff who may treat the authority as if they were in contempt of court. The Commissioner may also apply to the Sheriff for a warrant if there are reasonable grounds for suspecting that a public authority is failing to comply with the Act. The warrant authorises the Commissioner or his staff to enter and search the premises and to inspect and seize any documents or other material that might be relevant.

151 †261 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

Scottish The Commissioner The Children’s The Commissioner may Commissioner has a general function Commissioner does not carry out investigations for Children to promote and have the power to into whether service and Young safeguard the rights of investigate individual providers have “regard to People children and young complaints or support the rights, interests and people. individual cases. views of children and young people in making decisions or taking actions that affect those children and young people.” The Commissioner may require any person to give evidence or produce documents on any matter within the terms of reference of an investigation. Care The remit of the Care The Commission may enter None. Commission Commission is to and inspect any premises regulate care services that are used to provide in Scotland. The cares including care home Commission is under service, school care a duty to establish a accommodation, secure complaints procedure accommodation services in relation to the and independent health care provision of a care services which provide service or the exercise overnight accommodation. by the Care The Commission may also Commission of its conduct interviews and functions. inspect and take copies of documents. Any person who obstructs these powers is guilty of an offence. Mental Welfare The Commission The Commissioner has The Commission does not Commission for monitors the operation statutory powers to have any explicit statutory Scotland of the Mental Health investigate the cases of powers to conduct (Care and Treatment) individuals being treated inquiries of a more general (Scotland) Act 2003 under the Act. The nature. and promotes best Commission has powers to practice in relation to conduct interviews, inspect the Act. records, conduct medical examinations, make visits and require people to give evidence.

152 †262 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

HM Chief The Inspectorate has a HMCIP is entitled to access any Thematic Inspector of statutory basis and part of an establishment, to see inspections are at Prisons for reports to Scottish any relevant papers or records the discretion of Scotland Ministers. HMCIP’s held in the establishment or at HMCIP. It is up to functions include: SPS headquarters, and to HMCIP to decide • Inspection of all prison speak to any staff member or whether or not establishments in prisoner privately and in there is an Scotland; confidence. identifiable need • Inspection of all Individual incidents are subject for such an legalised police cells; to internal investigation within inspection. • Inspection of escorts; the SPS and would also be • Thematic inspections referred to the police if a and reviews as criminal offence is alleged to necessary; have occurred. The Minister for • Conducting reports on Justice may decide that HMCIP any matter connected should also investigate an with Scottish prisons as individual incident if that incident directed by the Minister is sufficiently serious. for Justice.

Scottish Prisons The remit of the The Commissioner is a creation None. Complaints Commission is to conduct of administrative policy rather Commissioner an independent review of than statute and therefore does prisoners’ complaints that not have statutory powers of have not been resolved investigation. through the internal grievance system of SPS. Commissioner The remit of the The Commissioner monitors None. for Public Commissioner is to appointments through Appointments in establish a code of independent scrutiny of the Scotland practice for Ministerial selection process, annual audit appointments to public and investigation of complaints. bodies and to monitor The terms of the 2003 Act place appointments to ensure a duty on Scottish Minister to that they are made on provide the Commissioner with merit after fair and open information relating to an competition. appointment, although no legal sanctions are set out in the Act.

153 †263 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

HM Inspector (HMIE) in Scotland is an Scottish Ministers have the None. of Education Executive Agency. The authority to dispatch HMIE core business of HMIE is to inspect schools and inspection and review. education authorities. If any person obstructs an inspection, he shall be liable on summary conviction to a fine or to imprisonment. An inspection may relate to those functions generally or to such matters in relation to those functions as may be specified in the request. Education authorities are required to give all reasonable assistance to whoever is carrying out the inspection. Parliamentary The Commissioner The Commissioner only The Commissioner Standards investigates complaints investigates whether or not does not conduct Commissioner that an MSP has broken the MSP has done what general inquiries, the Code of Conduct. has been complained give general advice about and whether that about the Code or means the Code of proactively advise Conduct has been broken. whether a proposed Parliament decides what course of action the consequences should might breach it. be if there is found to be a breach of the Code. Scottish Law The function of the None. None. Commission Commission is to recommend reforms to improve, simplify and update the law of Scotland. They offer independent advice to the Executive, but reform itself must be carried out by the Scottish Parliament or, where appropriate, the UK Parliament.

154 †264 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

LETTER FROM CONVENER TO DEPUTY MINISTER FOR EDUCATION AND YOUNG PEOPLE

Dear Robert

Scottish Commissioner for Human Rights Bill

The Committee has so far held three evidence-taking sessions on the Bill. As you would expect, a number of issues have emerged so far. The Committee agreed that it would be helpful if I were to write to you on these matters in advance of your appearance before the Committee on 18 January. I hope that this approach will allow us to get the most out of that evidence-taking session.

Functions of Commissioner

Perhaps the key issue for the Committee is to establish whether a Commissioner would add value to the existing arrangements in Scotland. Essentially, what is the gap in service provision that this Commissioner would fill? In answering this question, the Committee would be grateful if you could set out the duties/powers that are open to all the statutory commissions, ombudsmen, tribunals etc. in relation to devolved matters which have a locus in the human rights field. Assuming that the Bill is passed by the Parliament, what would you expect the relationship to be between these bodies and the Commissioner?

Relationship with the courts

The Bill, as introduced, limits the power of the Commissioner to intervene in court proceedings in civil cases but specifically excludes intervention in children’s hearing proceedings. In her oral evidence36, Scotland’s Commissioner for Children and Young People suggested that as human rights issues arise in children’s hearings their exclusion required to be justified. Could you explain the reasons for this exclusion?

Extent of powers

You will be aware that at the meeting on 14 December, a number of organisations argued that the Commissioner should be given greatly enhanced powers including having the power to investigate complaints by individuals; bring legal actions in his/her own name; be able to enforce the findings of inquiries.

Can you set out why you do not think it is appropriate to give the Commissioner these greater powers? What is your response to the view that without such powers this Commissioner is not worth having?

From a different perspective, it could be argued that should a Commissioner be established with the relatively limited powers that are set out in the Bill, what is to prevent the Commissioner from deviating from these terms of reference once he or she is in post?

On a related subject, the Committee notes that the Equality Bill at Westminster obliges the Commission for Equality and Human Rights (CEHR) to prepare a strategic plan identifying the various activities the CEHR will undertake, the priorities it will attach to different activities and an expected timetable for each activity. I also understand that the plan must be reviewed once every three years and must be consulted on. Can you explain why the Executive did not consider that it was appropriate for this obligation to be placed on the Scottish Commissioner?

Definition of Human Rights

Turning to the definition of human rights in the Bill, the Committee recognises that the ECHR is the only human rights instrument that is enforceable through the Scottish courts. One view is that other rights contained in other conventions, treaties or instruments are actually not rights at all – in that they cannot be enforced in Scottish courts. If this is the case, why is there a need for the Scottish Commissioner to promote awareness and understanding of rights that fall under these other instruments? By having this wider definition in the Bill, does this not dilute the promotional work that the Scottish Commissioner could do in relation to ECHR?

36 Official Report, Justice 1 Committee, 14 December 2005, cols 2486-7 155 †265 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

Budget

Turning to budgets, there has been a great deal of scepticism about the sufficiency of the proposed annual budget of £1 million. From the financial memorandum it is clear that only £225,000 is projected to be spent on promotion and awareness raising and research. How will inquiries be funded? Furthermore, how would you respond to the view that better value for money would be achieved by distributing the annual £1 million Commissioner budget to the various existing NGOs to allow them to work with public authorities to encourage best practice in relation to human rights?

As ever with legislation, the Committee is working to a tight timetable. I should, therefore, be grateful to receive your response no later than 11 January.

Yours sincerely

Pauline McNeill MSP Convener, Justice 1 Committee 23 December 2005

156 †266 2615 18 JANUARY 2006 2616

Nora Radcliffe: We would like one or two other Scottish Parliament aspects of the bill to be amended. First, the bill proposes that the accountable officer should be Justice 1 Committee the chief executive, but we feel that, in line with what happens with other commissioners, the Wednesday 18 January 2006 accountable officer should be the commissioner himself or herself. [THE CONVENER opened the meeting at 10:00] Secondly, we would like wording to be added to the bill that states the grounds for removal of the Scottish Commissioner for office holder from office, similar to the wording in Human Rights Bill: Stage 1 the Commissioner for Children and Young People (Scotland) Act 2003. It would be helpful for the corporate body and the office holder to have a The Convener (Pauline McNeill): Good clear understanding of the grounds for removal morning and welcome to the third meeting in 2006 from office. of the Justice 1 Committee. As usual, I ask members to switch off anything that might interfere Those are the two other main issues on which with the sound system. All members are present, we would have liked to comment to the Executive. except Bruce McFee. No apologies have been received, so he may join us at some point. I Stewart Stevenson (Banff and Buchan) (SNP): I hope that Ms Radcliffe is familiar with the introduce our adviser on the Scottish Finance Committee report on the bill, because I Commissioner for Human Rights Bill, Jim want to address what it says on the relationship Murdoch. We also have with us Sarah Harvie- between the corporate body, the commissioner Clark and Murray Earle, who are from the Scottish and—the third leg of the stool—the Executive. Parliament information centre and have been First, are you satisfied with the way in which the assisting us through the passage of the bill. commissioner’s budget will be set and with the Agenda item 1 is stage 1 consideration of the corporate body’s role in that? Scottish Commissioner for Human Rights Bill. I Nora Radcliffe: We would like greater clarity in welcome Nora Radcliffe and Huw Williams. Nora the bill about that relationship. We would like the Radcliffe will be known to all members—she is a bill to make it clear that it is for the corporate body, member of the Parliament and is here in her in discussion with the commissioner, to set the capacity as a member of the Scottish budget. With other commissioners, we can only Parliamentary Corporate Body. Huw Williams is comment on the budget before it goes to the head of corporate policy in the Parliament. I thank Finance Committee, but it would be better if the bill them for coming along. We will proceed straight to was clear that the budget is to be set by the questions. corporate body, in discussion with the Marlyn Glen (North East Scotland) (Lab): commissioner. Given that the proposed Scottish commissioner for Stewart Stevenson: Your response appears to human rights would be an office holder of the suggest that you see the corporate body as being Parliament, is the SPCB content with the the senior partner in the negotiations. You stated Executive’s consultation during the preparation of that the corporate body would “set the budget.” the bill? We have your written submission on that Are you satisfied that it will not compromise the issue, but I ask you to expand on those independence of the commissioner if you play that comments. role, rather than the position being one in which Nora Radcliffe MSP (Scottish Parliamentary the commissioner proposes and the corporate Corporate Body): It might have been helpful if body disposes, as is the case with other there had been greater consultation with the commissioners? SPCB about the financial memorandum. However, Nora Radcliffe: The lack of clarity in relation to we have an opportunity to feed into the other commissioners is caused by the fact that the consideration of the bill through the committee, for corporate body does not dispose; it can only which we are grateful. The minister in charge of comment on what the commissioner has proposed the bill, the Deputy Minister for Education and to the Finance Committee. We found this year that Young People, was recently a member of the that was not a very satisfactory arrangement. It SPCB and had the portfolio responsibility for would have been better if the budgets had been commissioners, so he probably would have been agreed between the commissioners and the aware of the likely views of the SPCB. However, corporate body and had then gone to the Finance more consultation with us might have been helpful. Committee. The Finance Committee has Marlyn Glen: Do your concerns relate only to recommended that it would prefer that the bill’s financial aspects? mechanism, which we would like to be codified.

157 †267 2617 18 JANUARY 2006 2618

Stewart Stevenson: I understand perfectly the Stewart Stevenson: Colleagues will ask about tension that you describe, but the important part of how much money is needed. I will close this part my question, which you really need to address, is of my questioning by asking about the SPCB’s whether, by making the role of the corporate body approach. In determining your approach to the more explicit and perhaps greater than it has negotiations—that is what we are talking about— been, we risk compromising the independence of with the commissioner, will you be driven by the the commissioner. amount of money that you can make available, telling the commissioner that they must work out Nora Radcliffe: I do not think that that risk what they can deliver for that, or will you simply would arise, because someone, somewhere must challenge the commissioner’s assertion that they say what the limits are on spending and be need a particular sum of money to do what they accountable for the use of public money. At some think is necessary? After all, they are responsible stage, someone will have to say whether for publishing the plan of what they have to do. something is or is not giving value for public How does the balance of the negotiations work money. It seems to me that, in this instance, the out? What are the respective roles of the SPCB corporate body is the appropriate body to do that. I and the commissioner in driving towards an do not see why that should in any way agreement on the budget? compromise the integrity or the functionality of the commissioner. Nora Radcliffe: With all due respect, that is like asking, “How long is a piece of string?” The rough Stewart Stevenson: You said in your response parameters are set out in the financial to my colleague Marlyn Glen that one of the memorandum, so we know roughly what ballpark changes that you wish to see made to the bill is for we are operating in. It is then for the commissioner the commissioner to be made the accountable to propose a budget that they can justify and person in law. In the answer that you have just which we accept is justifiable. When we have given, you talk about the SPCB being accountable agreed it, the money will come from the corporate for expenditure. Can you help me to understand body’s budget and then our budget as a whole will the distinctions that you are making? go to the Finance Committee, so there are checks Nora Radcliffe: All the other commissioners are and balances in the system. the accountable officers—is that the technical Stewart Stevenson: But which approach do term? you think you will take? Will you say, “This is the Huw Williams (Scottish Parliament Corporate money that is available,” or will you respond to Policy Unit): They are accountable for the money what the commissioner says they need? I have that they spend. had such arguments too many times to be readily convinced that these things are straightforward. Stewart Stevenson: They have to sign the They are not. Things always get difficult when accounts. They are accountable to Robert Black or money is involved. his successor. Nora Radcliffe: It depends on the proposal that Nora Radcliffe: They can account for the is made. If the commissioner asked for more than money that they have been given in their budget, we thought was reasonable, that might evoke one which is different from saying that we think that the response, but they might ask for less than we amount of money that they need to fulfil their thought was reasonable, which might evoke a functions and give value for money is X amount. different response. We cannot— Someone, somewhere must set the budget, but that does not mean that how the commissioner Stewart Stevenson: So you can envisage exercises their functions is compromised, unless circumstances in which you would say to the the budget is set at such a ridiculous level that commissioner, “Please take more and do more.” they are not able to fulfil their duties. We have a Nora Radcliffe: I do not think that it would be statutory responsibility to enable them to fulfil their couched in those terms. It is not for us to say what duties. the commissioner should do, but it may be for us Huw Williams: What we are looking for is to say, “Your plan is to do such-and-such. Do you greater clarity in the process. When we consider think that you have costed it adequately?” It would commissioner budgets, there are considerable be couched in that way. We cannot compromise discussions at official level before the matter the independence of the commissioner. reaches the corporate body. The corporate body Huw Williams: This year, one of the then takes evidence from each of the commissioners came forward with a programme commissioners about their budgets before putting that the corporate body thought, in monetary their budgets forward as part of its overall budget terms, was too ambitious—the corporate body bid to the Finance Committee. We want there to thought that the commissioner probably could not be greater clarity about what the final determining achieve it. All that the corporate body could do element of the budget process is. 158 †268 2619 18 JANUARY 2006 2620 was provide a note of caution to the Finance context. If the corporate body is taking a view Committee. The corporate body felt that that was about budget setting, I would like to know whether the extent of its powers. If it had greater powers, it it is satisfied that that can be done within the Paris could ask the commissioner to reconsider the principles. matter and come back with more formal proposals Huw Williams: That was one of the arguments for debate so that a conclusion could be reached that the commissioner for children and young on the project. people made to the Finance Committee. Stewart Stevenson: That brings me right back Obviously, we have to take the Paris principles to the beginning. You think that the corporate body into account, but we must also remember that the needs more powers to control and direct what the Parliament has to approve the use of public commissioner does. money for the commissioner’s functions. Nora Radcliffe: A commissioner’s budget should be agreed at the point of discussion 10:15 between the corporate body and the The Convener: But these matters are not commissioner, not at a different point when we mutually exclusive. You are arguing, “Our body will have sent our corporate budget to the Finance be accountable for expenditure, because someone Committee. We think that it is more helpful to has to be.” I have no difficulty with that, but I agree the commissioners’ budgets before we suppose that it all comes down to how one present our entire budget to the Finance interprets the Paris principles. My question is Committee. whether, in taking that particular view, the SPCB is The Convener: I ask Huw Williams to clarify the satisfied that what it is doing is in the spirit of those example that he gave. You talked about a principles. commissioner who came forward with a special Nora Radcliffe: I wonder whether we could project. Why was the corporate body asked to sign write to the committee on that question, because I that off? If a budget had been set for the do not want to give an unequivocal response right commissioner, why did they have to come to the— now. I would rather give the committee a written, Huw Williams: A budget had not been set. reasoned response that sets out our position on the matter. Nora Radcliffe: The discussion was about setting the budget. The Convener: That would be helpful. The Convener: Was it about the overall budget Mrs Mary Mulligan (Linlithgow) (Lab): I have a or a budget heading? more specific question about finance. Is the commissioner’s proposed operational budget of £1 Nora Radcliffe: It was about the overall budget. million a year realistic? On one aspect of the budget, we thought that a proposed programme was not deliverable within Nora Radcliffe: We are concerned that, in the proposed timeframe. We asked why the comparison with the budgets for other commissioner had budgeted for something that commissioners, it might be a bit tight. For they could not deliver and asked for a justification. example, the Scottish information commissioner’s budget is £1.4 million and the commissioner for The Convener: So there was no overall budget children and young people’s budget is about £1.3 to start with. That was the first attempt. The million. I think that £1 million will be adequate in commissioner came to the corporate body saying, the first year, as it will not have to cover a full year; “This is what we want to spend and this is what we however, it might prove somewhat restrictive in want to spent it on.” subsequent years. Nora Radcliffe: Yes. We also have a slight difficulty with the budget The Convener: I will ask you the same question for recruiting the commissioner. Although the that Stewart Stevenson asked, but I will put it amount that has been allocated might cover one differently. The backdrop to the question of recruitment exercise, the bill’s wording appears to independence and accountability is the Paris suggest that two separate recruitment exercises— principles. We are learning about those ourselves, one for the commissioner and another for the but they are the international standard for human deputy commissioners—will be carried out. We do rights commissions. Is the corporate body satisfied not think that the financial memorandum that, in broad terms, it has met the Paris addresses that matter. principles? Moreover, the costs incurred in seeking external Nora Radcliffe: Well— legal advice or consulting other sources, in holding an inquiry and in auditors’ fees do not appear to The Convener: You do not have to answer that, have been budgeted for. We need to set a realistic but we have to make you aware that that is the budget at the outset to ensure that we are all 159 †269 2621 18 JANUARY 2006 2622

operating within a realistic time frame and that we We wondered whether the commissioner would do not have to adjust matters later or to cut our need a chief executive, given that there will be a coats to fit an inadequate amount of funding. relatively small staff team. Also, if the committee takes on board the proposal that the commissioner Huw Williams: In order to make cost savings, should be the accountable officer, there might be the SPCB will certainly try wherever possible to no need for a chief executive, or some other post share support services such as information at that level, which would have an impact on technology. Obviously, we cannot provide any salary costs. However, we thought that the final estimates on such matters at the moment, but it figure was lower than we would have estimated if will really depend on the location of the office and we had been asked to do so. the number of staff to be employed. However, I should say that we are grateful for the SPCB’s Mike Pringle: I do not disagree about the post powers of determination over such matters. of chief executive; it would be an unnecessary luxury. Mrs Mulligan: It has been suggested to the committee that a £1 million budget is insufficient. Can we look at the commissioner’s salary? As I For example, the Northern Ireland Human Rights said, salary levels for equivalent posts have not Commission is already seeking additional been decided under the Equality Bill. It depends resources. Should we consider that example in our on who you talk to whether you argue that the deliberations? commissioner must have a legal background. If so, would they have to be paid a similar salary to Nora Radcliffe: It helps to examine the someone in a judicial position? Let us look at experience of comparable posts elsewhere. For some examples of judicial salaries in Scotland. A example, when we compared the budget for the judge in the inner house of the Court of Session proposed Scottish human rights commissioner to earns £175,000; a judge in the outer house earns those of the other commissioners in Scotland, it £155,000; and a sheriff principal earns £125,000. seemed a bit restrictive. The Scottish information commissioner earns Mrs Mulligan: That is helpful. more than £75,000, and the Scottish public services ombudsman earns quite a bit more than Mike Pringle (Edinburgh South) (LD): I feel £75,000. Will a salary of £75,000 be adequate, that the budget is lamentably low. The Finance given that the post of human rights commissioner Committee highlights the fact that staff salaries will will be, in my view, the most important amount to £175,000, which I presume will include commissioner post in Scotland? the chief executive’s salary. In comparison, the chief executive of the Mental Welfare Commission Nora Radcliffe: When we set the salary level, is paid £106,000; the chief executive of the we took into account what we do with our other Scottish Commission for the Regulation of Care is commissioners. This will be the fifth commissioner paid almost £100,000; and the chief executive of that we have appointed. the Water Industry Commission for Scotland gets Huw Williams: With our other commissioners, more than £80,000. Given that £175,000 is being we commissioned the Review Body on Senior allocated for staff salaries, it appears that, once Salaries to consider whether the salary levels that the chief executive is paid his or her salary, there have been set already were appropriate. Based on will be only about £75,000 left to do everything what it said, the ombudsman’s salary was else. I simply do not think that that is feasible. increased, but the others were felt to be within an Moreover, I find it bizarre that the commissioner’s appropriate range. The SPCB has not yet salary has been set at £75,000 right at the determined the salary level for the human rights beginning of the process. commissioner. When we were in London, we asked how much Mike Pringle: Perhaps we can explore that with commissioners under the Equality Bill were to be the minister. paid. We were told that we would have to take that up with the minister because no one had Nora Radcliffe: We have information about the considered or decided it. I understand that the bill current commissioners’ salaries. The Scottish went through the Commons on Monday, yet the public services ombudsman earns £84,477—that job specification has not even been decided. We was the salary that the Review Body on Senior seem to be really sort of cash for this. Salaries thought should be uprated. The Scottish information commissioner earns £77,722, and the Huw Williams: Staff salaries come to about Scottish commissioner for children and young £350,000. people earns £74,520. Therefore, the salary for Nora Radcliffe: We thought that it should be a the new commissioner will be in the same bit more than that. We estimated that it should be ballpark. closer to £388,000. Margaret Mitchell (Central Scotland) (Con): Was any account taken of the fact that the role is 160 †270 2623 18 JANUARY 2006 2624 mostly promotional and awareness raising? The Margaret Mitchell: So it would not come out of commissioner will not instigate legal proceedings, the SPCB budget. so additional costs for legal advice for public Nora Radcliffe: It would do at the moment. The authorities and the commissioner will not come way things stand, we would endorse the Finance into the equation. Committee recommendation that, if there was an Nora Radcliffe: The promotional activities will overspend because the initial budget had been be largely covered by the budget for salaries in the inaccurate or inadequate, the Executive should same way as they are for the Scottish meet that shortfall. commissioner for children and young people, Margaret Mitchell: How much attention would which is an equivalent role. be paid to the reasons for the overspend? If the There will be some occasions when the budget is found to have been inadequate, who commissioner might look to take external legal decides that? advice, particularly if they do not have a legal Nora Radcliffe: It is difficult to say. background. I am thinking of occasions when they have to intervene in court proceedings, which is an Huw Williams: We would look first of all to the activity that is included in the remit. I can see that commissioner contingency fund, which is there for that might be a reason for seeking external legal unforeseen events. It is a capped amount; it is not advice. an unlimited amount of money. Should we be unable to meet the shortfall from that contingency Margaret Mitchell: That would not happen as a fund, we would have to look in the SPCB’s overall matter of course, because there is no duty to budget, the purpose of which is to support the intervene, and that might be reflected in the Parliament. If we could not meet the shortfall, we amount involved. would have to put forward a supplementary Nora Radcliffe: That is correct. estimate to the Finance Committee, part of which would have to include a justification as to why Margaret Mitchell: What would the procedure there was a shortfall and what the reason for the be if, during the financial year, the commissioner increase was. That would be a matter for debate were to come along and say that it was clear that with the Finance Committee. the budget was going to be overspent? Margaret Mitchell: That is excellent. Thank you. Nora Radcliffe: There is a central contingency fund that all commissioners can draw on if they Mike Pringle: At the end of the SPCB need to, so it would depend on the nature of the submission are a number of comments that I think overspend. If it was seen as something that could we have already covered. For example, we have legitimately be met out of the contingency fund, talked about the chief executive and staff and there is money to cover that. If it was something about the role of the accountable officer. that we thought could be dealt with differently, we Do you have a view on where the office should would advise accordingly. be located? It has been said that the GB Margaret Mitchell: Which budget would that commissioner, who will be part of the proposed come from? Would it come from the SPCB GB commission for equality and human rights, will budget? be based in Glasgow. There might be a view that everything should be in one place, so that if Nora Radcliffe: Yes. someone arrives wanting to get a problem sorted Margaret Mitchell: Would you get an increase out and cannot get it sorted out by our in funding? Is there a tacit agreement with the commissioner, he could go to the GB commission. Executive about that? Finally, I have a mop-up question. I see that the Nora Radcliffe: We were quite attracted to the minister has just arrived outside the door. Do you Finance Committee’s recommendation that, if it have any other issues that you think it would be turned out in practice that the budget was too low, worth our while to raise with the minister today? the Executive should meet any shortfall if it could Nora Radcliffe: We are looking at the pros and be demonstrated that that had come about cons of co-location and how it could be because the initial budget was inadequate. accomplished. Audit Scotland is conducting a Margaret Mitchell: Would that be done by review of SPCB governance and we have asked it giving you the money to pass on? to extend its remit to consider options for sharing services or co-location among commissioners. If Nora Radcliffe: No. It would be a case of the the GB commission is to have a presence in Executive underwriting any potential overspend as Glasgow, there are strong arguments for co- a result of not having estimated the budget location, because the two commissioners will have accurately at the outset. to liaise closely. Obviously, such things depend on what is available at the time, what looks like being 161 †271 2625 18 JANUARY 2006 2626

best value for money and where it is sensible and Nora Radcliffe: We will write formally to the practical to share resources. Those considerations committee on the matter. I thank the committee for will all be taken into account when decisions are the opportunity to give evidence today. The SPCB made. I hope that that answers your question. It is appreciates that. quite an amorphous thing that we are dealing with The Convener: Thank you. when it comes to the practicalities, but we are actively looking at sharing services and at co- location, and there would be quite a strong 10:32 argument for the co-location of our commissioner Meeting suspended. and the GB commissioner, as they will have to liaise closely. 10:33 I think that the other issues that the committee may wish to raise with the minister have been On resuming— pretty well covered. The Convener: Our second panel is Robert Huw Williams: Most of the SPCB-related issues Brown MSP, the Deputy Minister for Education have been covered. and Young People, and his team of officials from the bill team, who are Brian Peddie, Ed Thomson and John St Clair. I welcome them and thank them 10:30 for appearing before the committee this morning. I Nora Radcliffe: The SPCB takes the view that thank the deputy minister for the detailed letter the accountable officer should be the that he has given the committee. Although we commissioner. However, the bill says: have not had the chance to take it all in, it is a thorough and detailed response, which is very “The chief executive is the accountable officer”. helpful to the committee. If that requirement were to be removed, the We will move straight to lines of questioning. Parliament could consider whether a chief The key question for the committee is: what is the executive was needed; the two issues are tied to need for a Scottish commissioner for human each other. It is also important to have clarity on rights? If you have read the Official Report of our budget setting. discussions on the bill, you will know that a As I said earlier, the bill should also include number of witnesses—the most notable of whom wording such as that which was included in the is probably Lord McCluskey—have made the case Commissioner for Children and Young People that prompts that question. They have said that we (Scotland) Act 2003 on the grounds for removal are taking human rights seriously and have a from office. Such wording would provide comfort to number of organisations and bodies that are duty the office holder and the SPCB. bound to promote human rights. In addition, the elected members of the Scottish Parliament have Is there anything else that we should mention, duties in this regard and the Parliament has Huw? incorporated human rights into its legislation. Huw Williams: No. Those are the SPCB-related Given that the issue is being taken seriously, why, items. The SPCB submission also raised on top of all that, do we need a Scottish questions on areas that are outwith its remit, one commissioner for human rights? of which concerns section 9, on report of inquiry. The Deputy Minister for Education and Our question is, what will happen to an excepted Young People (Robert Brown): If I may, I will inquiry report? The issue is one for the committee take a little bit of time on my response to the to consider. question. As the committee rightly says, that is the The Convener: Thank you. We have no more core question and I have a variety of things to say questions. We thank you for your evidence. The by way of response. committee would be pleased to receive comments I was impressed with the evidence that the from the SPCB on the Paris principles. One of the committee heard from the New Zealand chief debates that we are having is about the balance human rights commissioner. Among other things, between accountability—about which Nora she mentioned that before the New Zealand Radcliffe rightly spoke—and the independence of Human Rights Commission, with its promotional the commissioner. We need to ensure that the facility, was established, civil servants and local right balance is struck. Effectively, the SPCB will authority officials had little concept of human act on behalf of the Parliament on the matter. We rights, notwithstanding the fact that New Zealand want to know that, broadly speaking, the SCPB is legislation placed duties on them similar to the satisfied that its determinations are in line with the ones that you described. Paris principles.

162 †272 2627 18 JANUARY 2006 2628

The committee has, rightly, been concerned with cases is high and the outcome for individuals is whether the Scottish commissioner for human important. rights will add value. There has perhaps been a I will dwell a little on the commissioner’s role; I reluctance on our part, for which I take some am sorry to go on about this at length, but I think responsibility, to provide too much detail, because that it is important. The commissioner does not every commissioner has to develop their own declare the law—I know that you have had some priorities and must be—and must be seen to be— discussion about that—but his or her opinion is a independent of Parliament. We do not want to persuasive power. It will influence the debate suggest that the Executive’s priorities for the powerfully and might help Parliament and other independent commissioner’s remit are this, that or public authorities to consider matters and arrive at the other. the best conclusion. Public authorities might have It is worth answering your question in a number a duty to comply with the ECHR, but we know of ways. First, it is worth saying that the bill from the evidence of the New Zealand empowers the commissioner to do a number of commissioner and from many spheres of action things: monitor law, policy and practice; provide that such a duty requires drivers of public policy information, advice, guidance and education; carry and administration to bring about the highest out inquiries; and intervene in civil court standards on the ground. proceedings. In my view, a significant part of That brings me to the commissioner’s power to monitoring law, policy and practice—and indeed provide advice and training. There is an extremely providing guidance—will be to issue guidance to good study relating to Carstairs that shows what Parliament itself in the form of human rights can be achieved. In a case like that, the analysis of appropriate legislation. commissioner could hold an inquiry into an The argument has been made that both the individual institution. Until the 1980s, Carstairs had Executive and Presiding Officer have to certify that a poor reputation; it was largely custodial and bills are human rights compliant, but that takes the provided little in the way of care, therapy or form of a yes or no statement and does not get to rehabilitation for the inmates. The medical sub- grips with the reasoning, although some is committee considered the wider implications of the provided in the policy memorandum. It is helpful in Human Rights Act 1998 and realised that the many instances to have a fuller analysis. subtleties and implications were beyond the expertise that it was able to bring. It brought in When I was a member of the Social Justice Professor Allan Miller, who is a consultant and Committee considering the Housing (Scotland) Bill expert on human rights issues, and major changes in the previous session, there was considerable were made as a consequence. The comment that controversy about the right to buy for council and the committee made afterwards was that the housing association tenants. The Executive told us human rights approach provided it with an at an early stage that whatever was done in the immensely practical framework within which to future, we could not interfere with the existing consider the difficult decisions that had to be rights of council tenants, because of the European made. Human rights were mainstreamed in that convention on human rights. Politically, that situation in a way that had not been possible argument might be right—I am not making an before. issue of that—but I was and continue to be less than sure that it is correct legally, because of the I make that point largely in answer to Lord proportionality dimension to the ECHR and the McCluskey, who suggested that human rights in discretion that is given to national legislatures to the ECHR sense are not like legal rights and do make appropriate decisions. An independent not provide an enforceable framework. In my view, analysis of those issues by a human rights human rights have a double function. They provide commissioner might well have cast a different light enforceable rights for individuals—they are on the argument. declared and enforced daily in the courts—but they also provide a basis for qualitative Another example is in the realm of civil liberties, improvement in the performance of public where all sorts of issues are arising constantly in authorities, as in the Carstairs case. law and practice about the balance between the individual and the state, such as the retention of I will give some examples of areas that the DNA samples when people have been acquitted of commissioner might examine. My examples are the charges brought against them; the use of drawn from human rights cases. They include, police weapons; prisoners’ rights when they are in first, the rights of victims of crime or abuse and detention; the right of women to have their babies access to justice in remote areas or in specialist with them in prison; and slopping out, which I areas. The justice committees examine and know that the committee has considered in detail. discuss those matters from time to time. Further Many of those are extremely tricky issues relating examples are the rights of Gypsies on land and to vital subject matters, where the cost of court the implications for elderly residents of the closure

163 †273 2629 18 JANUARY 2006 2630

of care homes. In the latter example, the there might be a role for the commissioner to commissioner’s focus would be not so much the provide an independent analysis. How will that be closure as the way in which it is done and the done? Will you talk us through the procedure? The alternatives. committee sometimes has to wrestle with the rights of the individual, particularly in criminal law The commissioner might also examine school legislation. How do you envisage that we will use uniforms in relation to religious requirements; the the assistance of the human rights commissioner? care and feeding of patients in hospital wards; the rights of sufferers from particular conditions such Robert Brown: The commissioner could as HIV/AIDS; debt-recovery procedures; and the become involved at the request of the committee use of non-conviction information in child or might regard something as part of their protection—that is topical, given events involving workload. Obviously, in sorting out their workload, the Secretary of State for Education and Skills. the commissioner should know about and keep up There is a call to have another commissioner to to date with the forthcoming legislative examine the rights of older people more generally, programme. Of course, not every bill has but in my view such matters can be dealt with significant human rights implications, but many of more than satisfactorily under the banner of the them do. The primary point at which the matter will human rights commissioner. come into focus and the human rights commissioner might have some input is when the The ECHR requirements will allow the committee is considering its stage 1 report on a commissioner to take a balanced look at the bill, after there has been some consultation. It is issues that I mentioned and to consider the human important for committees to get some guidance rights of various groups. I contrast that with the not so much on the decisions that they make on position of the commissioner for children and the issues but on the issues that arise. We in the young people. Her remit contains aspects of Parliament have our own perspectives on human rights but, as she said, her role is particular bills, but we are not experts on human specifically to advocate the rights of children. The rights issues and we are not expert lawyers. human rights commissioner will be able to assist the Parliament by, for example, analysing the It will sometimes be difficult to work out all the thorny issues that arise when teachers are conflicts of interest, to tease out the implications wrongly accused of physically abusing children, for citizens or to strike a balance, but the such as the teacher’s right to expenses if they sue commissioner would assist the committees and the child and the teacher’s right to anonymity. The the Parliament in doing so. We do not need to go commissioner for children and young people too much further into the matter, because it can be would tend to be engaged on one side of that worked out between committees, the corporate issue and would not have the more dispassionate body and the commissioner. I suppose that the and impartial view that could be taken by the issue relates to the commissioner’s work human rights commissioner. programme, which the committee has also discussed. Suggestions could be made to the Many other issues are involved, but I hope that I commissioner about matters that they might want have given you a general outline of the to take on board. parliamentary analysis side and an idea of the slot into which the human rights commissioner will fit against the background of the other 10:45 commissioners, institutions and bodies. The Convener: The issue is important. To give The Convener: That was helpful, but I would an example, the protection of children is a live like to break it down a bit. You highlighted some issue. In considering the creation of risk of sexual useful examples—I have to say that, in evidence, harm orders, the committee felt that there were we have been a bit short of examples. We are fine balances to be struck. You may not be aware trying to make the bill real for the people whom we of this, but chief constables will be able to apply to represent, so examples are helpful. The issues the court for such an order without having that you mentioned are all issues that elected conviction information, if certain tests are satisfied. members talk about and members act as That is a strong power, so we were concerned advocates on behalf of people who are affected by about the human rights impact on individuals who those issues. One question that arises is whose are subject to such orders. I do not want to be job it is to advocate on behalf of some of our most bounced into decisions on such matters as a result vulnerable groups. of the human rights commissioner declaring that, in their view, a certain decision would be a breach You said that one of the commissioner’s roles of human rights. I feel strongly that the will be to provide an independent analysis, but you commissioner should not have that role. highlighted the fact that they will not have a declaratory power. It would be scary if one If I, as an elected member, am considering individual had such authority, but I can see that where the balance lies in deciding how to vote on 164 †274 2631 18 JANUARY 2006 2632 an issue, an analytical report from or discussion public’s reaction to the creation of another with someone who has expertise in human rights commissioner on an issue with which many people would be useful, but there is a crucial difference already deal, and with a potential cost of more between those two possible roles for the than £1 million a year? commissioner. Do you agree that that is an Robert Brown: People will have a range of important difference? Elected members could be views, as the MORI poll that was carried out for bounced into making decisions. Because the word the committee indicated. No single view emerged “advocate” has been used so often in relation to from that poll—if I recall correctly, the most the commissioner, I worry about the mechanism. common view on what human rights meant was Robert Brown: We must be careful about what shared by only 17 per cent of respondents. we say on the issue. I do not like the use of the However, the poll showed that there was fairly word “declarator” in this context. Nowhere in the wide acceptance of the importance of human bill does it state that the commissioner will have rights, especially for people at the bottom of the the role of declaring the law. As I tried to make scale, by which I mean people who live in deprived clear earlier, that will certainly not be the or vulnerable circumstances. Oddly enough, the commissioner’s role. It is absolutely clear that the greatest acceptance of the importance of human courts declare the law and Parliament makes it. rights was among working-class people, as the However, Parliament should not be too worried poll defined them. That seemed to reflect the fact about authoritative-sounding opinions. We employ that, more generally, there was considerable experts of all sorts in different ways—we have understanding of what, broadly, human rights committee advisers and other people who give legislation is designed to do. views. We also have screaming headlines in the There are obviously misunderstandings that press from time to time. In the overall scheme of need to be cleared up and some people are more things, an authoritative view from the human rights concerned about some aspects than others. Let us commissioner will not bounce MSPs into decisions take the thorny question of criminal issues, for that they would not otherwise make. example. I guess that there is likely to be less This is a matter for the commissioner, but I sympathy for people who take part in nasty imagine that their analyses or opinions would be criminal activities, but it is important to say that the expressed in a fairly legalistic form and would lay human rights commissioner should have a role to out the consequences on the one hand and on the play in relation to the rights of victims. The other hand. Equally, the commissioner might well convener seemed to suggest that the role of the want to be reasonably definite about his or her commissioner would be to act as an advocate, but views on certain aspects. That is their role—we do apart from advocating human rights, the not want analyses that simply lay out both sides of commissioner must ensure that high standards of the argument with no end result; we want the public performance are met and analyse whether commissioner to give guidance. that is the case. Human rights are not the only issue. I well The commissioner’s ability to examine the rights remember attending a lecture that Gordon of different sorts of groups or individuals in Jackson QC MSP gave at which he said that we different situations will be important. In court could abolish the right to a trial by jury without cases, we tend to think of the rights of the accused breaching human rights—the issue is not the be- vis-à-vis the majesty of the law that surrounds all and end-all or the only matter to be considered, them, but the issue is wider than that. The but it is an important matter. We should not use commissioner will have a role in considering phrases such as, dare I say it, “rights of systemic matters. That takes us into the realm of declarator”. The commissioner’s analyses will be the rights of groups and away from the rights of one source of information that comes to individuals in particular cases, which are for the committees and the Parliament. It will, I hope, be courts’ authority and lawyers to deal with. reasonably authoritative, although that will depend Mike Pringle: In a previous answer to the on the standing of the person who is appointed. convener, I think that you mentioned the standing Nevertheless, ultimately, the political and other and authority of the person who is appointed as decisions will be for members to make in the commissioner. I want to explore that. To me, accordance with their conscience. the human rights commissioner will probably be The Convener: I presume that the Scottish the most important commissioner in Scotland, so Executive is satisfied that the commissioner will surely we must make certain that that person, have general public support. Some of the issues whoever they are, is highly respected and that that you have raised are important to many there is no doubt about their ability, so that people people, but others are exclusive and only people will listen when they make a pronouncement. who operate in certain circles will be interested in Bearing that in mind and taking into account what them. Have you given any thought to the general you have said about the legal aspects of the

165 †275 2633 18 JANUARY 2006 2634

commissioner’s role, can you say whether the Surely it should be for elected politicians to make person who is appointed will have to have a legal such a decision with the advice of the relevant background and be able to demonstrate commissioners instead of looking to the new considerable expertise? commissioner in effect to set policy. Robert Brown: That is fairly likely, but we have Robert Brown: It is clearly the role of elected not put in the bill that that is a requirement of the politicians to make many of these decisions. job. People who are qualified and have standing However, the Justice 1 Committee and the as solicitors, advocates or members of the Parliament are not making decisions on the judiciary would all count as having a legal ground about local authorities, quangos and a background, as would certain academics and whole range of things, although there may be a people who come to the law from a different duty of accountability, through ministers, or to perspective. We should not necessarily rule out councils on those matters. As a wide range of people who have no legal background, but it is bodies of that kind is covered by the duty under reasonably unlikely that that will be the direction of the ECHR, considerable issues could arise and travel. The analytical requirements of the role the ability of the commissioner to be proactive is require such expertise to be brought to bear. I important. have no doubt that when the corporate body works You make the point—the case could be argued out the job specification, such matters will be given both ways, and I was conscious of that as I was further consideration. speaking—that the expertise could be provided in Mike Pringle: You would agree that we must other ways. I accept that entirely. However, in ensure that, whoever the person is, their opinions Scotland there is a fairly small community of cannot be in doubt. They must be someone of human rights professionals with the necessary serious expertise. level of expertise. It is important that there is a centre of expertise, which the commissioner would Robert Brown: I would not phrase it in quite provide, to draw people in, to act as a fulcrum and that way. They would certainly have to be to provide the resource that is needed to back up someone who would be listened to. That is the inquiries like the one that was undertaken at bottom line. They would have authority not just Carstairs. I accept entirely that the expertise could because of who they are but because of what they be provided in other ways, but the functions of the say. They would need to build up a track record of commissioner, including the promotional function, being reasonable, sensible and right. That, too, must be seen in their totality. will be important to the quality of the appointment that we make. As it happens, the people at Carstairs were far- sighted enough to bring in expertise but, in other Margaret Mitchell: At stage 1, we are instances, the officials or the persons in charge of determining whether the commissioner might add an institution, local authority, quango or other value, which is fundamental. So far, the evidence public body could charge on in the same old way on that has been sketchy. You have outlined some without being particularly apprised of the human definite ways in which you think that having a rights issues. You heard compelling evidence from commissioner would add value. You spoke about the New Zealand chief human rights commissioner the task of analysing whether bills were compliant on the point that there is a promotional aspect to with human rights legislation. On many occasions, the commission as well. Joining together the the convener has made the point that the promotional aspect, the analytical aspect for Parliament has not yet passed a bill that has not Parliament and the advice and inquiry aspect been HR compliant. A commissioner has not been gives a critical mass that is not got in any way necessary to achieve that. other than through the commissioner proposal. You mentioned the Carstairs experience. In that Margaret Mitchell: Is there not a disadvantage situation, it was clear that the medical sub- in taking such an holistic approach? You are committee did not have the necessary almost sidelining the very people who have competence and it brought in an adviser. You expertise and who have been working on human outlined how well that worked. Policy was changed rights for many years, who could make the and, again, it was not necessary to bring in a situation much clearer. You have provided a list commissioner. this morning. How many commissioners do we You said that the commissioner would be a need, if they are going to delve in there, and driver of policy, but I have a reservation about that. where is the duplication? Who will have the final You mentioned, in regard to the children’s decision if another commissioner may challenge commissioner specifically, that sometimes there totally what the human rights commissioner says? may be no definitive right and wrong answer; that Are we not creating more problems and making clearly can be the case and a decision may be a the law less clear? matter of proportionality and weighing things up. Robert Brown: No, I do not think so. 166 †276 2635 18 JANUARY 2006 2636

Margaret Mitchell: Are you not almost many non-governmental organisations out there, sidelining or bypassing the expertise that is or of the other commissioners. Rather than already out there by creating a commissioner? spending this £1 million budget on the creation of a centralised commissioner, would it not be more Robert Brown: The point that I was trying to effective to spread that budget over those non- make is that there is perhaps not as much governmental organisations and commissioners to expertise as we would like out there. The allow them to staff up and get the expertise or the commissioner will provide a fulcrum for producing kind of advice that the Parliament’s committees more of it. It may well be that not all the would get from people who are steeped in human commissioner’s activities, such as providing rights issues from all angles? Would not that be human rights training for public bodies, will be preferable? done in-house. Nevertheless, the commissioner will provide a centre of expertise, which is very Robert Brown: That is the point that Lord important. I do not accept your proposition about McCluskey has made. He is one of only three the sidelining of expertise; in fact, there will be a people involved in the original consultation who development of expertise in consequence of the were opposed to the concept of the commission. creation of the commissioner. Lord McCluskey seems to come from a rather different strand on human rights with a definite Duplication is an important issue. Executive view on the role of the courts in such matters, ministers have been concerned from the beginning which I do not think fits with the views that we got that the commissioner should fit into an from anybody else. appropriate slot and not do the job that other people are doing. That is why there is a specific I do not think that it is true to say that the other duty in section 14 to ensure that there is no commissions have that level of expertise. The duplication. We talk about protocols and issue of human rights is, at best, incidental to the agreements with other bodies and people, which operation of the children’s commissioner—which is could be the commission for equality and human probably the nearest one—or the public services rights at the GB level or the commissioner for ombudsman, among others. They have particular children and young people. From my previous roles to which human rights are incidental and, in experience as the convener of the cross-party some cases, they have to advocate for particular group on human rights, which related to a number interest groups. That is different from the position of groups, I know of the close relationship that of the human rights commissioner, whose job it there already was between the Equal will be to develop specific expertise in human Opportunities Commission, the Disability Rights rights generally, not to advocate for anybody in Commission, the Scottish Human Rights Centre particular but to improve standards across the and other bodies of that kind. I think that there will board through his promotional role. The human be a reasonably good understanding between the rights commissioner’s remit will go distinctly wider different bodies that are involved in these areas than just the development of expertise; a series of about where the centrality of their individual roles functions are laid out in the bill, which are relevant is; where definition needs to be made; and where to that context. That view was shared at an earlier there will be difficulties with overlap, which will stage by senior luminaries in the Conservative have to be resolved by agreement. There is party, such as David McLetchie and Lord James enough work across the board of the different Douglas-Hamilton, in a debate on the issue in bodies, as you rightly say, to keep people going in 2000. It is not a view that is limited to the coalition connection with that. parties. Having said that, I am not suggesting that the Margaret Mitchell: Right, but I return to the commissioner will do all the things that I have point that, if the expertise is to be developed, mentioned. The examples that I have given you should we not fund those people to develop are largely issues that came out of individual human rights expertise rather than rely on the human rights cases, which have been decided at central point? If the children’s commissioner is an various levels, often in England but sometimes in advocate for children, should they not be up to Scotland. Those issues have arisen over a date on children’s human rights? Should not all the number of years—happily, they have not all arisen other commissioners be up to date? Should not at once—and the commissioner will have to the non-governmental organisations be funded to programme himself or herself to be able to deal bring their case properly rather than through a with such issues in a rational way. third party? Should they not have more than a sketchy view of things? That is another way of looking at it. Lord McCluskey had a particular way 11:00 of arguing it; I am asking you whether that would Margaret Mitchell: I want to pick up on your not be more effective. development-of-expertise policy. You said that you would not sideline the existing expertise of the 167 †277 2637 18 JANUARY 2006 2638

Robert Brown: No, I disagree fundamentally on so I do not know the content of the earlier that point. Apart from any other issues, we have discussions. tentatively suggested that the human rights Brian Peddie (Scottish Executive Justice commissioner might have a role in providing Department): Some consideration was given to expert advice to the other commissioners. As I the fundamental question of the role of a have said—and as you rightly say—it is important commissioner, the need for a commission and that those commissioners have an appreciation of whether a role could be given to other bodies. It is and mainstream human rights in their work as well probably fair to say that the roles of the other as they can. However, that is not the central commissioners and the ombudsmen were not all requirement that is placed on the information fully formed at the time that the proposals in the commissioner, the standards commissioner or the bill began to be developed. I would not necessarily public services ombudsman, for example. Human claim that there was a full, in-depth analysis of the rights are incidental to their work; therefore, there option of giving the human rights remit to the will be added value in the existence of the human public services ombudsman; however, some rights commissioner, to whom such matters will be consideration was given to whether, instead of more central and who will be more impartial in having a free-standing commissioner for human handling human rights than some of the other rights, the role might be given to the ombudsman commissioners with their slightly different roles. or indeed to some other body. Margaret Mitchell: Could not the public Robert Brown: Among the questions in the first services ombudsman’s function be increased to consultation was something along the lines of fulfil that role? She is already considering some whether there were other ways to fulfil the function human rights issues. of a human rights commissioner. That is exactly Robert Brown: Yes, I saw the evidence that the the point with which you began. One of the main public services ombudsman gave in that regard. purposes of the consultation was to find out the She made the point that, in one or two other public response to that question. For what it is countries—which perhaps started from a slightly worth, from my reading of the evidence, Alice different point—the role of the ombudsman service Brown’s view—even having an interest in where has been expanded to include human rights. That this goes—was that the preferred method was to is not the usual remit, but it leads us into the create a human rights commissioner. territory of the ability to support individual cases. Margaret Mitchell: She also said that there was The crucial difference between the public services some advantage in having a one-stop shop and ombudsman and the proposed human rights putting all the functions with her. commissioner is that the public services ombudsman is very much case-driven. Her role is Robert Brown: I accept that entirely. To some to deal with maladministration in individual cases degree she has come to that conclusion after and to take things forward in that connection; she having amalgamated a number of ombudsmen’s does not have a sectoral role in the way that the roles that were previously dealt with separately. human rights commissioner will have one. Nor, She has experience of that. The point that we indeed, is she required to consider human rights have made throughout is that there is a issues specifically. complementarity—if that is the right word— between the roles of different bodies here. I would The answer to your question is yes, it would be certainly wish and expect, as I imagine the possible to do it in that way. I do not know whether corporate body said in its evidence, for there to be that would necessarily bring about budgetary as much co-operation between the bodies as savings, because we would have to develop a possible and as much common use of back-office whole new panoply of expertise. Also, it would services and so on as it is reasonable to have in dilute what we are trying to do with the human the circumstances. That is entirely reasonable. rights commissioner. My view, which may not be Alice Brown has developed a number of IT entirely shared by my colleagues, is that human activities, in which she is trying to interest other rights are central to those other matters. The commissioners. That has gone forward in some human rights commissioner is the bit in the middle respects. It is all good stuff. that percolates out to the activities of all the different commissions. I do not think that what you The Convener: We have dealt quite thoroughly suggest is the best way; it is certainly not what has with this question, but I have one point to raise in been proposed by the Executive in the bill. conclusion. You say in the opening paragraph of your evidence to the committee that Margaret Mitchell: Was that possibility considered prior to the bill? “there is at present no statutory person or body whose express purpose is to promote human rights”. Robert Brown: Consideration was given to a number of options. I was not in post at that point, I am about 90 per cent in agreement with that. We feel strongly, however, in making the case—or

168 †278 2639 18 JANUARY 2006 2640 not—for a human rights commissioner, that we explore a difference between the view of the have a dimension in Scotland that other countries Executive, and what you say under the heading do not have; devolution has been successful and “Extent of powers” in your letter. You suggest that we have an additional layer of Government. MSPs the Parliament does not have the power to give are legally bound to ensure that we incorporate the Scottish commissioner the right to raise legal the ECHR in legislation. It would be helpful if the actions in his or her own name. However, I put it to Executive could reiterate the backdrop to the you that the advice that we got in London from human rights issue. I have a great deal of respect officials and politicians on the joint committee, for the expertise of witnesses in their field of which is made up of members of the House of human rights—I trust their judgment—but I have Commons and the House of Lords, was that we do been concerned that none of the witnesses has have that power. Have you considered their mentioned the elected legislature and its role. It is opinions on that matter in reaching your view? important in Scotland to pin down where the gap Robert Brown: Our officials have had is—where the need for a commissioner is— discussions with officials in London. The view that because we have devolved Government. is laid out in my letter follows logically from the Robert Brown: As you rightly imply, human scheme of the Scotland Act 1998. Not to beat rights is at the heart of the devolution settlement. about the bush, the argument is a bit tortuous. It The Human Rights Act 1998 is part of the goes back to the definition in the Human Rights Scotland Act 1998 to all intents and purposes. We Act 1998 of victims being people who bring actions therefore have a much higher profile for human of one sort or another. The view that has been rights in Scotland than in the UK or in other taken by our officials—in agreement with countries. Westminster officials, I thought, although I might be wrong—is that, because that act is linked with The human rights commissioner is an instrument the Scotland Act 1998 in terms of how the of the Parliament—I use that word advisedly Parliament is set up, we cannot give our because the commissioner has an independence commissioner the power to raise individual cases. that I am not trying to take away. The Parliament is creating the human rights commissioner through I know that there is phraseology in the Equality this bill. The commissioner will add to our Bill that looks forward to the Scottish corporate ability, across the board, to ensure that commissioner and allows for consent from the human rights issues, which are extremely Scottish commissioner in certain situations to such important to the Scottish Parliament, are actions being brought by the GB commission, but I implemented to as high a standard as possible. suggest that the primary concern relates to cases Ultimately, that is what it is all about. We should that raise devolved and reserved issues. It would remember, of course, that Parliament has the probably be artificial to have a case in which, for power to hire and fire the commissioner and to artificial reasons, as it were, a bit of the argument direct them in certain circumstances. The could be made with the support of the GB commissioner will be conscious of the primacy of commission but the other bit could not. I think that the Parliament. that is the situation that is looked to by the legislation that is going through Westminster. If Stewart Stevenson: I start with the modest you recall, support was originally not going to be observation that Scotland has fewer politicians per given to individual cases in that way. That came in head of population of any country in Europe—34, by way of an amendment later on. which compares to 42 in England. I confess that that leads to a difference between Robert Brown: I am not convinced that that the powers of the GB commission and the powers observation will attract public acclaim. of the Scottish commissioner. Of course, that is Stewart Stevenson: It is merely an observation not the only difference. The Scottish commissioner that those who claim that politicians need has powers to enter premises, which—I think I am additional support from a commissioner such as right in saying—are not given to the GB the one that we are discussing might care to commission. We are making our own legislation, consider. quite rightly. If I may, I will move on to other aspects of what The point is that if we are not empowered by the the minister described as “complementarity”. ECHR arrangements in the Human Rights Act Minister, you will be aware that the committee 1998, it is difficult to see how we could be in a visited Westminster to talk to officials and the joint position to give powers to our commissioner that parliamentary committee on Westminster's would require Westminster legislation to bring Equality Bill, which is at a somewhat more them about. advanced stage than our bill. In your letter to the committee convener, you made some observations on the extent of powers. I want to

169 †279 2641 18 JANUARY 2006 2642

11:15 Robert Brown: I will start with the policy. The Stewart Stevenson: That was quite a wide- concept that we have proceeded with from the ranging answer, minister. Later, one of my beginning has been that we have not been keen to colleagues will develop issues relating to the go in the direction of allowing the commissioner to power to enter premises. take action in their name. We did not see that as being the commissioner’s primary function. It is For interest, I direct you to section 17 of the bill perfectly true that, in some other jurisdictions— before us. It defines the meaning of “Scottish Northern Ireland, for example—a substantial case- public authority”. Interestingly enough, section work function has grown up around the human 17(a)(ii) includes in the definition authorities that rights commissioner, perhaps for local reasons. are only partly dealing with Scottish Parliament However, our decision was made for two reasons. responsibilities, in other words, those that cross First, an expansion of the remit would have the boundary— budgetary implications; secondly, there are other Robert Brown: Are you talking about the bodies that are relevant in this area, including the Human Rights Act 1998? courts, as Lord McCluskey quite rightly pointed out, whose role it is to be active on these kinds of Stewart Stevenson: No, I am talking about the issues. Scottish Commissioner for Human Rights Bill. I apologise for my lack of clarity. At the beginning, the equalities commission approach came from the fact that it had some of Robert Brown: No, I think that I allowed my the relevant rights because of its anti- mind to wander further than I should have from discrimination and equality role, rather than its this rather complex argument. human rights role. There was a unity of concept at Stewart Stevenson: Perhaps, but perhaps not. the beginning that has gone away a little bit as a The subject is complex and I think that we do not result of the slight change that has been made to yet want to restrict your wanderings, although we the Westminster legislation. might later. One of my Liberal Democrat colleagues in The boundaries between the responsibilities of Westminster tabled an amendment to the Equality the Scottish Parliament and those of another place Bill. I think that it was debated yesterday. are addressed in that section, in a sense. The Brian Peddie: It was debated on Monday. section appears to give this Parliament’s commissioner some locus not to be shut out from Robert Brown: In response to the amendment, consideration of such matters. However, the need the minister, Meg Munn, said: for our commissioner in effect to ask the GB “The legal effect of this amendment is highly ambiguous commission to act in legal matters appears to be a and for that reason alone the Government must oppose it significant gap and to change the responsibilities … If the purpose is to override the victim test in section 7 of that this Parliament can exercise over some of the the Human Rights Act, we do not think the amendment is clear enough to achieve it. However, it is clear that the things that happen that are related to Scottish amendment is intended to deal with a matter—namely, the administration. The Westminster commission will powers of a person established by Act of the Scottish act in matters that are wholly to do with the powers Parliament—that falls within the area of devolved of the Scottish Parliament. competence of the Scottish Parliament.” That is the background. Will you revisit whether So, without going into the ins and outs of the side we have the powers to do what we have been issue of the amendment, this gets into the talking about? This committee met particular situation that we are talking about—the limitation officials who expressed particular views in answer that the Westminster Government sees in to particular questions that were put to them. I proceeding in this fashion. accept that that might not be the same set of Clause 7(1) of the Equality Bill—the principal officials that you have spoken to. Further, I would clause—provides: not want to make any judgment as to the capability of the officials to whom we spoke to give an “The Commission shall not take human rights action in absolutely informed answer. However— relation to a matter if the Scottish Parliament has legislative competence to enable a body to take action of that kind in alternatively—I think that it would be opportune to relation to that matter.” examine the question of whether a reverse Sewel motion might give us the powers that we are That was the starting point of the equalities talking about, which it would appear to make legislation as well. In the debate in the Commons, sense for us to have. Meg Munn went on to say: The bottom line is this: is this situation where “If and when a Scottish commissioner for human rights is you wanted to end up, in policy terms? established by Act of the Scottish Parliament, it will be possible to consider whether any further provisions need to be made in relation to reserved legislation to give the

170 †280 2643 18 JANUARY 2006 2644 commissioner the powers that he or she needs to carry out legal action to change how local authorities work their duties.” in such cases? The individuals concerned would That would be done have the legal capacity to take action in any event, but they would not necessarily have the financial “by way of an order under section 104 of the Scotland Act capacity to do so because, as teachers, they 1998. Such an order would be taken forward by agreement between the Government and the Scottish Executive, and would probably be at an earnings level that would would be subject to scrutiny here in Parliament.”—[Official largely disbar them from getting support from the Report, House of Commons, 16 January 2006; Vol 441, c Scottish Legal Aid Board. I choose that as an 652.] example to illustrate the point. Where, in this That is, in the Westminster Parliament. maze, would we end up delivering on the human rights of those individuals, who the commissioner The Executive’s policy position is that we do not has said are not being properly treated, if the need, and should not proceed in the direction of authorities are not under the cosh of legal giving the commissioner powers to take cases in enforcement to make them change how they their name. If the view of Parliament ultimately work? That appears to be the power that the differed on that, and if Parliament wanted to Westminster commission will have—not the proceed in that direction, it would require Scottish commissioner—in what is a wholly legislation at Westminster in the form of an order Scottish matter. made under section 104 of the Scotland Act 1998 to give us the powers to do that. We should not Robert Brown: Even in the Westminster get too tied up in the technicalities of all this; the context, the likelihood of the GB commission central question is whether or not we want to go in supporting a large number of individual cases is that direction. That must be the committee’s not that great. primary concern. Stewart Stevenson: Allow me to clarify, The Westminster Government has already said minister. Although I am referring to the delivery of that it is not talking about the GB commission justice to individuals—which is what we have to operating in devolved areas without the consent of ensure—I envisage that in the sense of the GB the Scottish commissioner. I accept that that does commission taking action on the general issue. not entirely square the circle—which is Stewart Robert Brown: I accept that entirely; however, Stevenson’s point—but I cannot conceive of a we are talking about the support or the institution situation in which the Scottish commissioner, of individual cases and, frankly, I cannot conceive which was set up under devolved legislation to of a situation in which the GB commission would deal with devolved issues, would give consent to support the taking of such an individual case in the GB commission to make inquiries entirely in a Scotland—which, you will accept, is entirely a devolved area. I feel that the areas of matter of devolved Scots law with regard to concentration would be those in which there is education and schools—or, indeed, in which the some overlap—where both devolved and reserved Scottish commissioner would regard it appropriate issues arose out of something that we had done in to consent in that particular context. that particular context. Stewart Stevenson: So would it be a matter for Stewart Stevenson: Let me give you an Alice Brown to deal with? That brings us back to example, minister, to test whether I understand her assertion that she is involved in human rights this correctly. It is perfectly possible that I do not. and should be given the additional responsibilities In your opening remarks, you referred to some of to— the cases that the commissioner might take on. One of those was a teacher being falsely accused Robert Brown: Her issue proceeds from of improper conduct in relation to a pupil. Under maladministration and her role is slightly different. the bill, the Scottish commissioner for human She might have a role in that matter, as might rights could make inquiries about the general others; however, I suspect that, in the sort of case framework and could report on whether matters that you are talking about, a legal decision by the were being conducted in an appropriate manner court would be the end of the matter, failing that was consistent with human rights. However, legislation to put the matter beyond doubt. In that would do nothing to move forward any relation to legal aid, many trade unions support individual’s case unless the local authorities were their members in taking legal action by paying for to take action in relation to teachers being allowed lawyers. I do not know the position of the teachers to teach, and so on. We are talking about highly unions, but support of that kind might be available. sensitive and complicated things in which there That is a broader issue. would be great variability in instances that might It is not envisaged that the human rights occur. commissioner or any of the other commissioners Is it envisaged that the Scottish commissioner will be able to solve all the problems of the could ask the Westminster commission to take universe. As the convener said earlier, there is a 171 †281 2645 18 JANUARY 2006 2646

role for Parliament in these matters. Parliament A number of remedies are available, and we are might decide to legislate in particular areas of adding to the panoply of remedies and possible concern, such as that which you mention, and we forms of action by creating the commissioner— should not ignore that aspect in the consideration that is the central point. We have departed a little of these things. from the equalities commission point, regarding the technicalities of the issue, which I thought was Stewart Stevenson: You used that example the central point that you were trying to make. yourself in your preliminary remarks. It is still unclear to me how the commissioner will achieve Stewart Stevenson: Are you ruling out the justice for the individuals in the situation that you Scottish commissioner in such circumstances or, described. in the long list of examples of circumstances that you gave, asking the Westminster-created Robert Brown: I was talking about that in the commission to act? context of, among other things, the commissioner’s power to raise awareness and to hold inquiries. It would be perfectly possible for the 11:30 commissioner, if he or she saw fit, to hold an Robert Brown: It is inconceivable that the inquiry not into the practice of a specific council Westminster commission would take such a but into the practice of councils generally in request on board: doing so would not be part of its matters of that kind and to produce a report with functions. I accept that, because of the recommendations, which the appropriate bodies relationship between the two bodies and the two would or would not take on board, as they saw fit. legislatures, there is a difficulty with squaring the That would be a contribution of a powerful kind circle. In the situation in question, before action both to the debate and, perhaps, to parliamentary could be taken, the power for the victim’s interest legislation if that was thought appropriate. It would to be represented would have to be given. The be one remedy or way of taking things forward. primary issue for the committee and the Executive Nobody is suggesting that the human rights is whether we want to go in that direction. The commissioner or anybody else could solve all the Executive’s advice is that we do not, because we problems by their very existence or that they think that other remedies are available in such would have the power to take action in every circumstances. conceivable situation. That is certainly not the case. We accept that there is an anomaly in the Westminster legislation, the details of which will Stewart Stevenson: You thought that that have to be worked through. I want to correct example was important enough to include it in something. I said earlier that there might well have your preliminary remarks. been guidance from Westminster on the view that Robert Brown: Yes. was taken, but a direct view has not been expressed about what the end result of all that Stewart Stevenson: Does it matter whether we might be. have a huge debate if, ultimately, there is no process by which the individuals whose human Brian Peddie: Do you mean that a view has not rights we have identified as being transgressed been expressed about devolved competencies? can get a remedy? Robert Brown: Yes. Robert Brown: There are two points to make on Brian Peddie: We have had extensive that. First, as you have rightly identified, there is discussions with officials in the UK Government. It redress through the courts, if that is appropriate. has not expressed such a view to us and I was not Stewart Stevenson: And if that is available. aware that it had expressed such a view to the committee. I would find that rather surprising, but I Robert Brown: Just a minute. There may be do not know what was said to you. issues about support, the applicability of legal aid, and so on, but there is redress through the courts. Stewart Stevenson: I want to be cautious and I That is the primary instrument—it always has was careful to say that the capacity in which a been—for the vindication of people’s legal and view was expressed to us was not necessarily of human rights. the same quality as the capacity in which a view was expressed to you. I acknowledge that Secondly, the commissioner will have the power absolutely. However, committee members were to hold inquiries into specific sectoral issues, left uncertain about what the position was. which will allow a view to be taken and recommendations to be made about I will move on, which the convener would have improvements that might be made in certain areas encouraged me to do anyway. You are ruling out of the law. The commissioner might well do that in asking your colleagues at Westminster for a the case that we are discussing if he or she section 104 order, which would clear up the regarded it as a priority. 172 †282 2647 18 JANUARY 2006 2648 ambiguity and permit us to create the power if we expedient in consequence of something that the chose to do so. Scottish Parliament has done. I am not saying that section 104 has not been stretched almost to Robert Brown: The Executive is subject to the breaking point up until now, but that we cannot be decision of Parliament in these matters. confident that we can effect the change in that Parliament can take a different view from the way. Executive on where it wants to go. The policy objective and the advice that the Executive is Robert Brown: Certainly, it is no longer giving the committee is that we do not want to go possible to get anything into the Equality Bill to in that direction, partly for the reasons that I have cover the issue. I return to the point that— set out about overlap and duplication and partly The Convener: I am sorry, minister, but I want because there would be budgetary implications, to be clear about what John St Clair said. My which we all have to be cautious about in these understanding is that if we decided to change the flattening-financial-trajectory times, if I can use Human Rights Act 1998 to give Scotland the such a horrible phrase to support my position. If equivalent power for its commissioner that the GB the committee and the Parliament take a different commission for equality and human rights will decision, that aspect will have to be revisited. have, the change would have to be done by way The Convener: I just want to be clear about of Westminster primary legislation. this, although I think Stewart Stevenson has John St Clair: That is not the only way in which clarified the point. Our discussion with officials was it could be done. It could also be done by an purely informal. We are not implying that any amendment to schedule 5 to the Scotland Act status is attached to our discussions. I just wanted 1998 through an order in council. That is quite a to nail that down. big constitutional measure to take, however. The minister is correct to take a view about The Convener: And it still comes under the whether having a section 104 order is desirable. At primary legislative competence of Westminster. the moment, I tend to think that the Executive has it right, because there are other ways of achieving John St Clair: I agree; it is not within the the same thing. The question for the committee competence of the Scottish Parliament to do that. remains. We want to be clear about who is competent to legislate. Competence would appear The Convener: Before we come to a view on to lie with Westminster, because what we are whether the change is desirable, it is helpful to talking about relates to the Human Rights Act understand the legal technicalities of the issue. 1998. However, even if we all agree in our report Robert Brown: The matter is extremely that we want the power to be given to the Scottish technical; I am learning as we go along—learning commissioner, that will not happen because the on the job, as it were. discussions on the UK bill will have finished. It is not likely that Westminster will go back and open Stewart Stevenson: My question appears to be up discussion of that one issue just for us. more straightforward; it is perhaps also less controversial. Unlike the Westminster bill, which Robert Brown: Leaving aside the phraseology requires the commission for equality and human of the Equality Bill, which we know is not finalised, rights to prepare a strategic plan and to consult on I understand—and I look to Meg Munn’s statement it in advance, the Scottish commissioner for to the Commons on this matter—that it would be human rights does not appear to be required to possible to deliver the objective if it was specified prepare such a plan. Is the minister prepared to in our bill in terms of section 104 of the Scotland look further at the issue? Why did we not take a Act 1998. I make no claims to be an expert on the similar approach to that which was taken at technicalities of that. Whether it is the way forward Westminster? might need to be the subject of further detailed advice, but that is what the Westminster minister Robert Brown: My understanding is that the said. requirement emanates not from the human rights perspective but from that of the other areas of John St Clair (Scottish Executive Legal and discrimination for which the commission for Parliamentary Services): Speaking as a lawyer, equality and human rights will be responsible. The as far as officials are concerned, the unity of requirement on the commission follows on from advice that we have received so far is that we the practices of the current commissions—the cannot change section 7 of the Human Rights Act Equal Opportunities Commission and so forth— 1998 by way of an act of the Scottish Parliament. which it is to replace. The clear advice that we have also been given is that we cannot be confident that it could otherwise Section 12 places on the commissioner the be done by a section 104 order. Section 7 looks general duty to lay before the Parliament an like a substantive measure in its own right; it does annual report, which must include not contain provisions that are necessary or 173 †283 2649 18 JANUARY 2006 2650

“a summary of the action which the Commissioner have to be included, rather than things that are left proposes to take in the next reporting year in pursuance of out. It is not about what the report itself says. that duty”. Stewart Stevenson: Section 18, on Section 12(3) goes on to provide that interpretation, does not provide a definition for “In preparing a report under this section, the Commissioner “content”, but I am sure that good faith will prevail. must comply with any directions given by the Parliamentary corporation— Robert Brown: What I have said this morning is also relevant, if there is ambiguity. This the SPCB— phraseology is used in other legislation and it has “as to the form and content of the report.” the overall implication that I have described against the overall context of the bill. Consultation is an important angle to all this; it is reasonably clear that all sorts of people will want Stewart Stevenson: I accept that entirely, but I to raise interests in this regard. We do not want am sure that you also accept that it is up to some sort of bidding war to take place. The committees to work from a zero base and to commissioner will talk to all sorts of relevant question previously accepted nostrums for their interests in the preparation of the annual report. continuing utility or otherwise. Obviously, there is also a limit to the resources Robert Brown: I would not expect anything the commissioner can bring to bear on their work else. in this respect. If we added a requirement to Stewart Stevenson: Lord McCluskey consult, it would not only produce an undesirable questioned the inclusion of human rights beyond formality but be costly. A requirement to consult what had been legislated for and the extent to would add another burdensome duty to those the which human rights, as defined in the bill, include commissioner is already required to undertake. things that are not capable of enforcement in law. Consultation is probably far better done informally; Might the bill’s being almost a blank cheque carry the bill allows the commissioner to decide on the with it the danger of a loss of focus on the key way in which he or she will undertake it. issues that are essentially entrenched in law? I do not have a closed mind on the subject, Robert Brown: It is fair to say that we do not however. If people have other views of which they have an open-ended bill, but the other conventions would like to persuade me, I am more than happy that you mention form, to some extent, what might to look further at the matter. Consulting is an be described as background flavouring in the important issue. This relates to the point the legislative approach taken by the courts. As I convener made about the extent to which the understand it, the courts are entitled to have commissioner will be subject to parliamentary regard to some of those other conventions in authority. It is important that the Scottish instances of ambiguity and to help them in commissioner for human rights is set up in an interpretation or in deciding on the approach to be independent way and that that is seen to be done. taken. There are obviously specific issues with If we included in the bill a form of consultation, the regard to visiting international human rights implication would be that the commissioner was committees of one sort or another, which are being directed on the detail of his or her work. entitled to call upon us to assist in their That would raise a number of issues. The endeavours in that regard. That is a specialist sort committee may want to ponder its approach to the of area and is pretty self-explanatory. matter. Section 2(3) specifically states: Stewart Stevenson: The minister referred to section 12(3), which includes the wording, “form “the Commissioner must have regard, in particular, to the and content”. If we seek to have a commissioner importance of exercising the Commissioner’s functions who is independent of the SPCB, is the use of the under this Act in relation to the Convention rights.” word “content” appropriate? I do not envisage the That gives a reasonably clear priority focus to the corporate body flexing its muscles unduly in this ECHR, notwithstanding the ability to look for regard, but if “content” is used, it appears that the enlightenment in certain instances to the commissioner will be pretty much under the thumb background flavouring issues, as I have described of the corporate body. them, where that is suitable. Robert Brown: When I was on the other side of Stewart Stevenson: It comes back, the fence, as a member of the corporate body, I presumably, to the plans that the commissioner had responsibility for dealing with the lays before Parliament. Will those plans take commissioners. That was the sort of concern it account of what weight those considerations will had. I am perfectly certain that the corporate body have in the future work programme? will be restrained: “content” does not mean what goes in; it means the subject matter that goes in, if Robert Brown: That might be the case, you see what I mean. It is about the things that although I am not altogether certain that the plans 174 †284 2651 18 JANUARY 2006 2652 would go into that level of detail, as opposed to (i) the law of Scotland, and saying, “We’re going to do an inquiry into X, rather (ii) the policies and practices of Scottish public than Y.” However, that may be an aspect that authorities”. should be considered. I would be surprised, to be quite honest, if the workload of the commissioner Lord McCluskey said that if the commissioner is were significantly determined by the existence of going to keep the law of Scotland under review, the right to look to other international instruments that will be a full-time job and they will have no of one sort or another. time to do anything else. Could you comment on that? The Convener: Will you, at some point, give the committee a list of the relevant human rights The Law Society of Scotland said that it has five conventions that would come into play? people on its staff who are constantly reviewing the law of Scotland. Do you agree that Robert Brown: I thought that that had been organisations such as the Law Society, the done, but if it has not we are happy to do that. Scottish Law Commission, the Parliament and the Executive are already reviewing the law of The Convener: Primarily, the commissioner will Scotland and that, therefore, there is a danger of a deal with the Human Rights Act 1998. We have lot of duplication? In what way do you think the been given some examples to do with the commissioner will vary what he is doing in relation convention on torture, but there are other to the law of Scotland from what those other conventions and we need to know exactly what bodies are doing? powers we would be giving a commissioner and what areas might be covered. Robert Brown: I think you missed out the qualifying phrase at the beginning of section 3, which is: 11:45 Robert Brown: I am happy to do that. I think “For the purposes of the Commissioner’s general duty”. you will find that the European Court of Human That means that, in relation to the commissioner’s Rights and the Scottish courts probably have general duty of promoting human rights and so on, some regard to those other conventions when they he must keep under review the law of Scotland. interpret human rights legislation and the ECHR The duty to do so is subsidiary to the general duty itself. I am not an expert on that, but I think that in section 2. that is probably the case. I must confess that, when I first read that The Convener: That is accepted but, for our section, I had similar issues to those that you purposes, we need to be clear about the situation. raise. However, I was advised that that is the right Brian Peddie: Would it be helpful for you to way in which to phrase the section. It does not have a list of the international human rights require the commissioner to consider everything conventions that the UK has ratified? That is what straightaway or even in the future. As you noted, the bill refers to. the Scottish Law Commission has powers to consider generic review of the law in certain areas The Convener: Yes, and a broad description of and has done some useful reports in relation to what they are about. certain areas. For example, the Family Law Brian Peddie: We can provide that. Would you (Scotland) Bill that we dealt with recently resulted like copies of the conventions or would you be from a Law Commission report. satisfied with just a summary to start with? I warn The approach of the Law Commission is much the committee that some of them are lengthy. wider than that of the human rights commissioner. Mike Pringle: Let us protect the trees. The human rights commissioner’s focus remains on human rights and the law of Scotland in so far The Convener: I think that we are all agreed as it relates to human rights requirements. The that a summary of the broad issues would be fine. initial words in section 3 and the primacy of section 2 are important in relation to the way in Brian Peddie: We will provide that. which you should approach this issue. Mike Pringle: Section 14(2) says: Margaret Mitchell: With regard to the direct “The Commissioner must seek to ensure, so far as incorporation of the ECHR into Scots law, is that practicable, that any activity undertaken by the not already being considered? Is that not being Commissioner under this Act does not duplicate automatically taken into account in any review? unnecessarily any activity undertaken by any other person under any other enactment” Robert Brown: Yes. With regard to the but section 3 says that one of the duties of the incorporation of the ECHR, it should be noted that commissioner is to its provisions are set at a fairly general level—a prohibition against torture, a right to privacy, a “keep under review— right to security of possessions and so on. The 175 †285 2653 18 JANUARY 2006 2654

meaning of all of those elements is capable of Mrs Mulligan: In reply to questions from both indefinite development because of changing social Margaret Mitchell and Stewart Stevenson, we conditions. We are not dealing with a static established that you are content that the society. As society changes, views about those commissioner will not have an individual inquiry issues and about the top standard in terms of function. Is that correct? human rights change as well. Robert Brown: Yes. The issue is therefore not just one of the ECHR Mrs Mulligan: Some of the witnesses from requirements but of how they are interpreted in the whom we have heard—for example, practical situations that come up every day. The representatives of the Disability Rights American constitution is a similar document in that Commission—have suggested that that is one of it is set out in general terms and is the subject of the pitfalls. In the wider public arena, there may be an enormous number of cases before the courts in an expectation that the commissioner will have an America. Similarly, the ECHR has been examined individual inquiry function. How do you respond to in the European Court of Human Rights and courts that concern? in the UK. Robert Brown: There is a comprehension The role of the commissioner is to be aware of aspect to the issue. As the bill progresses, the such issues, to be up to date with relevant legal commissioner is appointed and so on, we will get decisions and to try to ensure that public bodies, in a clearer view of the commissioner’s role and his particular, are aware of their responsibilities and or her central duties. Human rights is a term that conform to human rights standards in their has a wide connotation. When I was practising as approach to their duties. I do not know whether a lawyer, a significant number of the clients who that answers your question. came through the door said that their human rights Margaret Mitchell: My question was whether had been breached. In 99 cases out of 100, it was bodies such as the Law Society of Scotland, the just a phrase—they really meant that they felt that Scottish Law Commission, the Parliament and the injustice had been done in their case. Whether Executive are already examining the role of public there was right or wrong on their side is another bodies where the ECHR comes into the equation. matter, but issues relating to the ECHR were rarely raised. There needs to be an educative Robert Brown: You are right to say that a process in that connection, so that people can series of bodies are examining the issue, but you understand the position. would not postulate that we should have the Parliament, the courts and nothing else. A series It is worth mentioning the existence of the Paris of public bodies carry out administration: local principles, on which I am sure the committee has authorities; in a slightly different context, quangos, received evidence. The Paris principles set the and so on. There are individuals to inspect, to international standard for what human rights monitor and to perform various other tasks in that commissioners should be, how they should be set connection. up and so on. The independence of the commissioner and their accountability to I return to where we began the debate. The Parliament—we have not stressed that point issue is whether the human rights commissioner today, but it is a distinctive feature of the proposed adds value to what we are trying to do. Our Scottish commissioner—are part of that. However, contention is that they do, for the reason I have the Paris principles do not require human rights given. Although it is true that other people are bodies to handle complaints, especially where, as operating in allied and, to some degree, in Scotland, a number of other bodies are active in overlapping fields, by placing a specific duty on that area. the commissioner to enter into arrangements with other bodies to ensure that duplication does not This goes back to the value judgment that needs happen, the bill is designed to avoid duplication. to be made about what the commissioner should There are not so many of those bodies as to make do, whether added value is created by their that difficult. It is fairly obvious where the children’s existence and whether we want to go further by commissioner or the Scottish public services giving the commissioner the power to deal with ombudsman might be interested, for example. complaints. Our contention is that that is not Arrangements can be made to deal with any necessary, that it does not add value and that it overlapping issues there. The provision is might be a distraction from the commissioner’s designed to help make the human rights main role. Even the commissioner for children and commissioner’s duties more focused than they young people, who has a slightly different role, would otherwise be. said that the lack of such a power in her jurisdiction had not handicapped her to date, Margaret Mitchell: It comes down to a value although she wanted to keep the matter under judgment. review. That was an interesting observation. Robert Brown: Absolutely. 176 †286 2655 18 JANUARY 2006 2656

Mrs Mulligan: Given that she said that she Robert Brown: Under section 4(1), the wanted to keep the matter under review, will the commissioner may, among other things, “provide Executive consider doing that? advice or guidance”. The terms are general. There Robert Brown: The Parliament rather than the is an issue about how the commissioner will Executive will want to keep all such matters under provide advice or guidance and the extent to review. The Finance Committee has had concerns which it will be available to individuals. The about budgetary levels, sharing of services and experience of the Northern Ireland Human Rights the location of commissioners’ offices, which we Commission has given us some information on have reflected in the bill. It is entirely right for the what happens when a commission body is given Parliament to take an overview of those issues as that additional function. I think that I am right in they affect all the bodies, which, after all, are set saying that evidence on numbers was available up under the Parliament’s authority. The Executive from the Northern Ireland commission, which was might have a view to contribute, but we would helpful in getting a taste of things. prefer the Parliament to take the lead role in that Section 4 states that advice is to be provided process because of the independence of the commissioners. “For the purposes of the Commissioner’s general duty,” The proposed commission for equality and which is human rights in London will be the result of an “to promote awareness and understanding of, and respect amalgamation of previous bodies and an for, human rights”. expansion of their role, and I suppose that one That points to the commissioner having a general cannot rule out such a development here. As such role rather than setting themselves up as an developments take place and we gain experience advice agency for individuals, although I do not of how they proceed, we might want to consider think that the phraseology that has been used how the different bodies interrelate and whether necessarily rules that out. Brian Peddie might be some of them should be joined together. I do not able to help me out on that. think that we are at that stage yet; we are talking about whether the Scottish human rights John St Clair: I will answer that. What is commissioner will fill the slot in the middle that has envisaged by the text of section 4 is that the been left by the Equality Bill and by the other commissioner may provide general advice to the developments that have taken place here and public rather than individual case advice because whether, in doing so, they will add value. it would be inconsistent for the commissioner to Mrs Mulligan: Do you think that there could be investigate only sectors, but to give advice about a problem in that someone who thinks that they individual cases. We do not think that section have had their human rights breached and goes to 4(1)(b) could properly be read as giving the the commissioner that the Parliament will establish commissioner such a specific role. could be told that they should go to their lawyer, Robert Brown: I stand corrected. whom they should have gone to in the first place? The Convener: Mary Mulligan is essentially Robert Brown: Perhaps. The commissioner will correct in the sense that if a member of the public have an advice function, so they could support goes to the human rights commissioner and says individuals by providing them with advice. that they think they have a complaint, they will However, the point has already been made that have to be sent away. limited resources will go into that, so the commissioner’s ability to do that sort of thing will Robert Brown: That is right. The commissioner be limited. Whether people in remote rural areas will not have the facility to support such activity. can get access to a lawyer with human rights That said, an individual complaint might lead into expertise and, if they cannot, how we can go consideration of an issue that has general about filling that gap might be more of an issue. In application. We would not want to rule that out, so that connection, there might be a number of ways the commissioner would have to be open to of meeting need, without getting the commissioner receiving information in some way. The involved in the provision of financial or other commissioner and their chief executive would support to individuals who want to take a case to have to give a bit of thought to the best way of court. However, in the long term, we rule nothing ensuring that that was possible. out; we would naturally wish to keep that issue There will certainly be a need for openness to under review as the system develops. knowledge about the issues. Some of that will Mrs Mulligan: That is helpful. We will come come from knowledge around the courts and the back to resource issues later. human rights community. Other issues will come about in the press and in other ways. I guess that The Convener: I want to clarify what you were there would have to be some way in which people referring to when you mentioned the could make their views known to the commissioner’s advice function.

177 †287 2657 18 JANUARY 2006 2658

commissioner. We do not particularly want to how they would deal with people who came encourage an individual advice function; there through the door. would have to be a general duty. There is a The Convener: Judging from what you have distinction between general sectoral investigations said, however, there could be some back-door and advice to an individual. ways. We need to be clear about that. We will come to the question of how priorities are 12:00 determined. The human rights commissioner will, John St Clair: Such a case could be considered inevitably, get letters from members of the public to be at the margins, because there is a general and will write back saying, “I can’t take up your understanding that public bodies have a duty to be individual complaint because I don’t have the as open and helpful to the public as possible. An power to do that.” However, those individuals may individual would not immediately have the door raise issues with a common theme on which, I closed on them, but the commissioner might point presume, the commissioner might want to take a them in the right direction. It would go no further view, especially if several hundred people had than that; the commissioner would not get involved written to them about it. We need to make clear in the detail of an individual case. where the dividing line is. That would be an individual complaint that just happened to be a Stewart Stevenson: I want to be absolutely common issue for many people. clear about what constitutes a Scottish public authority, in relation to inquiries. I realise that that Robert Brown: That is what I was trying to get goes back to the Human Rights Act 1998. Would at, and I was trying not to go too far into all this. the private company Kilmarnock Prison Services The commissioner must be open to getting fall within that definition? I choose that company through the door knowledge about general issues not for any particular reason, but just as an of that kind—some of the issues that I talked about example. before. At the same time, they could get bogged down in hours of discussion with individuals, trying The Convener: Are you opening up a new to find out what on earth the issue was, as people subject area? sometimes have difficulty in explaining Stewart Stevenson: I am just asking whether themselves. The commissioner would have to inquiries could be conducted into that company. I work out the practicalities, but the direction of will take your advice, convener, on whether this is travel is very clear. We do not want the an appropriate point at which to raise that issue. commissioner to undertake a direct advice function on individual cases, but we want to be The Convener: Before we move off the specific able to bring into the organisation knowledge point of the advice function, I think that we need to about general issues that might be the subject of discuss the issue further so that it is clear to us general inquiries. where the dividing line lies. When a commissioner is created, it is inevitable that members of the Margaret Mitchell: Have you not just underlined public will queue up to get advice or assistance. the case for giving the funds directly to the non- What will be the mechanisms for dealing with that? governmental organisations to which the individual would be directed by the commissioner? Robert Brown: I come back to the general duty Robert Brown: No. We are talking about a “to promote awareness and understanding of, and respect subsection of section 4 that relates to only one for, human rights”. aspect of the commissioner’s general duty. I do The general duty is developed in section 4, in not think that our earlier discussion points us in the terms of the specific things that the commissioner direction that you suggest. can do in that connection. Under section 4(1)(b), I As I said, nobody has ever suggested that the imagine that pamphlets, guidance or things of that commissioner will be the answer to all the sort might be made generally available. problems of the universe. The commissioner will As John St Clair said, we do not envisage there work with other people, bodies, voluntary sector being an individual advice facility. However, the organisations and Government bodies to be part commissioner might point people in the direction of the whole picture of resources that are available of other agencies that do that sort of thing. The to the citizen to deal with their individual and ombudsman’s role is relevant in that context. general ails. Voluntary sector bodies might have a role in Margaret Mitchell: I accept that entirely. We are connection with that, as well. Reasonably clearly, looking at the best way of doing things. However, the commissioner would have to determine the you have just said that approaching the way in which he or she exercised that function. I commissioner is not the best way of dealing with do not think that the commissioner would be able individual complaints. You outlined a process in to set up a general advice-giving facility—that is which the commissioner would direct the individual the central point—although there is an issue about 178 †288 2659 18 JANUARY 2006 2660 to a non-governmental organisation, which would applications to the children’s panel, part of our job then look at the general theme of the complaint is to explain what members of the children’s panel before referring it back to the commissioner. Why do—that is endemic to the existence of almost any not just let the commissioner run with the organisation. complaint in the first place? Going back to the We do not envisage the commissioner having an commissioner to explain everything seems to be individual advice role and we would not be in a the duplication that we seek to avoid. position to make funds available from the Scottish Robert Brown: As I have said, there are Commissioner for Human Rights Bill budget to concerns about how the process will work and enable the commissioner to operate in that way in what the facilities will be for referral to other any event. That is the central point. agencies. Nevertheless, it remains the case that it Marlyn Glen: You spoke about the value of the will not be the commissioner’s job to take up committee’s evidence session with the New individual complaints or to give individual advice— Zealand chief human rights commissioner. She that has been made very clear. told us that her commission had conducted an We have had a lot of discussion about the extremely successful inquiry into public transport Scottish public services ombudsman’s role in all in rural areas, which had considered the human this and it might well be that individual cases rights practices of private operators. Would our should be referred to her to avoid duplication. commissioner be allowed to conduct such an However, it is a matter for the commissioner and inquiry? the ombudsman to work out the details. I am not The committee is concerned that confining the an expert on the matter and neither are committee Scottish commissioner’s inquiry function to members. Using their expertise, the commissioner Scottish public authorities could be unduly and the ombudsman will have to work out the restrictive. What do you understand the term practical implications of some of those dividing-line “Scottish public authorities” to mean in practice? points, which will arise inevitably in the function You talked about Carstairs, which would obviously not just of the commissioner, but of many other fall into that category, but what about Kilmarnock bodies. prison? It is not clear whether joint ventures and The Scottish Law Commission deals not with similar initiatives would count. individual cases, but with generic reform of the Robert Brown: I do not want to give a view on law. How does it get its information about areas of Kilmarnock prison in particular, but my the law that need to be attended to? That is the understanding is that private prisons in general kind of question that we are considering in the would come under the definition of public bodies in case of the proposed commissioner. the Human Rights Act 1998 because they provide Margaret Mitchell: With respect, we are talking a whole service for the public authority. The same about an individual in whom expectation could be might apply to care homes in certain instances, created by this commissioner, who will— but not to private care homes, which operate in a different capacity. There will be some grey areas Robert Brown: Explaining to the public what for which a definition will have to be developed. they can expect from the commissioner will be part of that office’s promotional campaign. In my The New Zealand Human Rights Commission’s experience, people are pretty good at finding their inquiry into transport is an interesting way to the relevant bodies in such situations. In development, but it arises from the commission’s some cases they might have to be redirected, but wider role in equality. If I have understood the that happens anyway; the advent of the inquiry correctly, equality was one of the aspects commissioner will not create that problem. With with which the New Zealand Human Rights great respect, your viewpoint is not supported. Commission was concerned, but we might not be able to consider transport from entirely the same Margaret Mitchell: You do not accept that the point of view. If one is stuck in a house, I do not creation of the commissioner could produce know whether the right to liberty is quite the issue, confusion. but the right to respect for private and family life, Robert Brown: No, I do not. Clarity is available. home and correspondence might conceivably However, nobody disputes for a minute the fact raise some issues if private life is too constrained, that there will be overlaps in functions. The for example. I do not know whether that would be potential for duplication exists, but the bill contains a possibility. It would be a matter for the a specific duty to avoid that. I fail to see what more commissioner to decide whether the convention we can do to avoid such difficulty other than letting rights provided hooks on which to hang such an the commissioner explain, as part of the inquiry. I am not entirely sure that I know the promotional activities, exactly what his or her role answer to that, to be honest. is. The same applies to almost anything that we do. When my department advertises for 179 †289 2661 18 JANUARY 2006 2662

Marlyn Glen: Are you saying that you would not that, because part of the private company’s rule out the possibility of private operators being business is the provision of those public services, part of such an inquiry? its whole enterprise is drawn into the scope of the bill. Robert Brown: As I said, I would not exclude private operators in so far as they provide services John St Clair: We agree with that. to public authorities. John St Clair will correct me if Stewart Stevenson: The issue is the services I am wrong, but I do not think that that would rather than the organisational structures that necessarily include private transport operators. deliver them. John St Clair: The legal definition of public function is problematic. If a body carries out a public function it will come under the Human 12:15 Rights Act 1998 and hence be caught by the bill. Brian Peddie: That is correct. It might help to There is authority that large transport companies mention that the Commons and Lords Joint that cover almost the whole nation are carrying out Committee on Human Rights published a report a public function, so they could be investigated. on the definition of a public authority. It gave the The mere fact that the function is being performed example of a security company that ran a private by a limited company does not mean that it is off prison and provided security services at a limits for the Human Rights Act 1998 or the bill. supermarket. The first service would clearly be public, so the company would fall within the Robert Brown: It is a bit of a grey area, but the definition of a public authority to that extent. The grey area arises not from the bill but from the provision of services to a supermarket would not definitions and powers that are given in the fall within that definition, even though the same Human Rights Act 1998. That is the difficulty. You company supplied the services. The question might be right to say that there are issues with the involves the function and what is provided. definition of public authority, but that is a broader issue, which does not affect the bill. Stewart Stevenson: Is it fair to say that it is not envisaged that all services that are acquired by Stewart Stevenson: I apologise for my earlier public money will fall within the definition of public intervention; I pre-empted my colleague’s line of services? questioning. John St Clair: We agree that not all services I take it that there is little or no ambiguity if the that are acquired by an authority will become service is provided by a private company whose public functions. For example, if a hospital has a sole business is to provide that service. contract with a private health provider to run the Kilmarnock Prison Services Ltd is an example of hospital and to deliver almost all the health that, albeit that, as is usual in such cases, that services, that is almost certainly a public function. company is a subsidiary of a company with much However, a contract to do the electric lighting or to wider interests. dig up drainage, for example, probably does not John St Clair: I think that it is slightly different in involve a public function. Determining to what that if, as in the case of Kilmarnock prison, the extent something is a public function is a question company carries out a function on behalf of an of the degree and scope of the function. Executive department, it becomes a public Stewart Stevenson: Is one of the definitive function although it is carried out by a private body tests that the service is delivered to an individual and is therefore caught by the bill. real person who has human rights? The electrician Stewart Stevenson: Yes, but the test that who is employed to provide electrical services in a removes ambiguity is that the company’s core hospital, for example, directly provides services business is to provide that service. not to a real human being but to an organisation. John St Clair: No. We do not have to consider John St Clair: The service need not be the whole company’s core business; we consider provided directly to the consumer to be a public the function that is being carried out. The company function. Quite a lot of functions that are can count as a public authority even if the public undertaken on the Government’s behalf do not function is only a small part of its business. impact directly on the consumer, but the citizen has an interest in their being undertaken. Defence Robert Brown: The definition emanates from is a classic example of that. the provision of public services. We have to consider the matter from that angle, not the Stewart Stevenson: However, in defence, company angle. provision of the service—let us say the Army, for the sake of argument—is clearly part of the public Stewart Stevenson: So it is the services, which service; it is controlled and directed in the public happen to be provided by a private company, that service. On the other hand, the transport of tanks are within the scope of the bill. It is not the case is now fulfilled by a private company. At one point, 180 †290 2663 18 JANUARY 2006 2664 that was clearly a public service. I do not want to anyone in the public sector, but that elderly people become overembroiled in one instance, but you who are in care homes, having previously been in gave that example. Is such transport a public hospital, might not be covered by the definition of service? public authority. John St Clair: That is a difficult question, Robert Brown: I take the point, but there are because the function is on the borderline between bodies that relate to private care homes, such as public and private. I would not like to give a view the care commission, which could be the subject on that—the point could be argued both ways. of human rights investigations. Perhaps that helps. Some of the issues that we are discussing might, Stewart Stevenson: The committee is left with incidentally, be taken on board. I do not want to go a genuine dilemma—perhaps the Executive is in a too far in that direction, but members can see the similar dilemma. How the heck will we resolve lie of the land of what I am suggesting. The care what is or is not a public service? commission has rights of inspection of private care John St Clair: The problem is addressed in homes and other such bodies. different ways in different legislation. All the public Mrs Mulligan: I take the minister back to the functions can be listed, which produces a huge example that was given by the New Zealand document, or a definition that uses a big word commissioner: that of transport, and bus services such as “public” can be used. Neither option is in particular. From what you have said, my perfect and both lead to difficult cases, such as understanding would be that FirstBus, for your example of transporting tanks. example, would not be covered by the legislation Stewart Stevenson: I am genuinely concerned in providing its service, because it is a private about how the definition issue will be resolved company. What would be the situation if FirstBus when it arises. were to be assisted by a local authority in running a particular service? Would that service be Robert Brown: I make the general important encompassed? point that the question does not arise from the bill or the commissioner’s role. I understand entirely Robert Brown: There are two points about that. that the committee needs to comprehend the First, it is likely that the railway bodies will be issues and I have listened to the discussion with covered, because they provide a service that is interest, but we can do nothing in the bill to clarify commissioned, in effect, by the Scottish Executive. or change the position, because it arises from the To an extent, that is also the case with bus Human Rights Act 1998. If we talked about the companies. FirstBus and other companies would, commissioner’s right to conduct an inquiry, I in certain parts of their role, be covered by the suppose that somebody could interdict the definition of public authority, as there are quality commissioner from becoming involved in a subject bus partnerships and other arrangements of a because the definition did not cover it. I doubt more technical nature—with which I do not claim whether anyone would go down that route, but that to be au fait—as well as subsidy arrangements, could—just—be envisaged as a possibility. That under which people run special lines and so on. would mean that a definitive decision of the court Organisations are given licences to run bus had been made in one of the grey areas that you services, and the role of public authorities can be have talked about. regarded on that basis. Stewart Stevenson: There is, however, a sense It is not easy to get this entirely clear, but we are in which the commissioner is protected by the concerned with the policy function of roles rather definition in section 17(a)(ii), which explicitly than with the private status or otherwise of the permits intervention where there are “mixed companies involved. Our tentative view might be functions”. that organisations such as FirstBus might, or even would, be covered, at least in part, and possibly in The Convener: That is true, but the point that substantial part, in terms of the functions that we Marlyn Glen was pursuing is that there is an on- have been discussing. Have I misinterpreted that going debate about the definition of a public at all? authority under the Human Rights Act 1998. That was the central issue that was raised by the New John St Clair: The definition of public authority Zealand chief human rights commissioner. is very problematic, but there is no way of getting round it. The minister is right to say that there is an It is important for us to know the scope. Some of argument that certain types of private company the issues that have been suggested to us as that run transport services for the benefit of a large human rights issues will still have to pass the test section of the public could be classed as of being covered under the 1998 act with respect performing a public function. We cannot define to public authorities. The most notable example of things more tightly than that. We could not that is private care homes. It seems odd in the definitely say that FirstBus, for example, was extreme that we can address the human rights of performing a public function. The more locked into 181 †291 2665 18 JANUARY 2006 2666

the local authority and the more interwoven with its normally give 14 days’ notice. We would expect functions that an organisation is, the more it those organisations that are covered by the becomes public. It comes back to questions of powers to give immediate access to the degree. commissioner. However, the 14-day provision sets a basis for further action if access is not granted. Mrs Mulligan: It has been suggested that there could be a further complication, in that there might I know that there has been some discussion in be a difference between the receiver of the the committee about the appropriateness of the service, the customer and those who deliver it, provision. It has been said that if torture or who are employed by the private sector company. something of that nature is going on in prisons, the Would you foresee any difficulty in that regard? thumbscrews and other instruments of torture could have been taken away by the time that the Robert Brown: In terms of their human rights? commissioner arrived. Mrs Mulligan: Yes. Mike Pringle: I am not sure that we expect to Robert Brown: Let me think about that. I hear that torture is going on in our Scottish suspect that the employees’ rights are probably prisons. not covered by the human rights implications. Robert Brown: We can certainly look at the John St Clair: No—employee contractual point again. However, there has to be a basis for rights— following through on the procedure and taking enforcement action. There has to be a refusal or Robert Brown: It is a different issue, anyway. implied refusal to give access to the premises. John St Clair: Such contractual rights are not There is nothing particularly magical about the 14 covered by the Human Rights Act 1998. days; we can look at that again if the committee has strong views about it. However, we do not Robert Brown: So that issue would not arise. expect that that power will be used at all, because We are interested in the customer, if you like. we will expect public bodies to give the No doubt that has brought clarity to the whole commissioner access on demand. thing. Mike Pringle: What happens when the Mike Pringle: It is as clear as mud. commissioner turns up and expects to get access on demand, but is told that, under the legislation, Mrs Mulligan: We could probably go on forever he has to give 14 days’ notice? with examples in which we might foresee difficulties. However, the minister talked about Robert Brown: Section 8 is the key. It says that being clear about where the commissioner will be the commissioner may involved and what role they will play, so it is useful “enter any place of detention for the purpose of exercising for the committee to have heard some of those any power under paragraph (b) or (c)”. examples. There is no qualification in the principal section of John St Clair: As I mentioned earlier, there is the bill. That sets out the power and the an alternative way. I refer the committee to the entitlement. Freedom of Information (Scotland) Act 2002, in which the public bodies are all scheduled and Schedule 3 is a subsidiary, to some extent, to there are specific powers of adding by schedule. the main section. It lays down powers that the commissioner can exercise if he is not given co- Mike Pringle: Having discussed that operation. As I said, we can look at the issues complicated and complex situation for a again. I am conscious that the issue has been considerable length of time, let us come to a minor raised a number of times during the committee’s issue and an easy question. Schedule 3 to the bill evidence taking, but there must be some basis for says that the commissioner has to give 14 days’ the formal exercise of the enforcement powers. notice when they visit a public authority or a There has to be a reason for enforcement; one prison, for example. Everyone whom we asked— does not force an organisation to grant access although we did not ask everyone—thought that before one has asked for it in the first place. that suggestion was not sensible. Will the minister lodge an amendment to the effect that, if the Mike Pringle: I am grateful that the minister has commissioner wants to enter premises, he will not outlined how he thinks that the provision will work. have to give 14 days’ notice but will be able to I am sure that the committee will discuss that later. walk up to the front door, knock on it and say, “I want to inspect”? 12:30 Robert Brown: We could view that on several Stewart Stevenson: I will examine the wording levels. The power is intended to be a back-up; it is of the bill more closely. Paragraph 1(1) of not intended that the commissioner would schedule 3 refers to section 8(1). The schedule

182 †292 2667 18 JANUARY 2006 2668 states that in relation to any place of detention, the The Convener: Our adviser has raised a point commissioner may exercise the powers under about the optional protocol in relation to section 8, section 8(1) only after 14 days’ notice has been entitled “Places of detention: powers of entry, given. In other words, it specifically excludes inspection and interview”. Section 8(1) states: exercise of the powers in certain circumstances by “For the purposes of an inquiry, the Commissioner may— qualifying the powers under section 8(1) and stating that 14 days’ notice is necessary. However, (a) enter any place of detention for the purpose of it appears that under section 7, which relates to exercising any power under paragraph (b) or (c), evidence, and paragraph 1 of schedule 2, on (b) inspect the place of detention, and requirements to give evidence, the commissioner (c) conduct interviews in private with any person detained can turn up at the gates and say, “I require there, with that person’s consent.” somebody to give evidence, and to do so now,” because the power is unqualified. Is that a fair There is no specified time period. It seems to be a interpretation, or am I being sufficiently selective general power. as to distort what the bill means? Robert Brown: But section 8(5) states: Robert Brown: I had better pass over to John “Schedule 3 makes further provision in connection with St Clair to deal with the detail. However, my the exercise of the powers under subsection (1).” general comment is that although we are talking Stewart Stevenson: The issue relates not to about powers, in 99 cases out of a hundred, such subsection (1) but to subsection (2). things will be done by arrangement, rather than by exercising powers. We are talking about how the Robert Brown: Subsection (2) just defines process will operate in exceptional situations. “place of detention”. The principal power is in section 8(1). It is subject to schedule 3 under John St Clair: The minister has said that the section 8(5). I may be missing something. I do not authority of the commissioner, like that of the fully understand the point. inspector of prisons, means that doors will open automatically when he arrives. However, if he Stewart Stevenson: I accept that. meets resistance, he will be able to invoke formal The Convener: The difference seems to be that powers. Sometimes the resistance may be under the Scottish bill, the commissioner will have justified. A building might be being reconstructed to be conducting a specific inquiry. and it might be dangerous to give access—that is why there is a notice period. The Executive is Robert Brown: Do you mean to entitle the open to argument on whether the period should be commissioner to enter a place of detention? shortened. The Convener: Yes. Stewart Stevenson: So the existence of powers Robert Brown: Section 8 specifies that the does not preclude the commissioner from entering commissioner may enter a place of detention a place immediately without invoking those powers. Therefore, I am perhaps not being wholly “For the purposes of an inquiry”. unreasonable in pointing to the interoperation of I am trying to think of other instances. section 7 and schedule 2, which flesh out that that can happen. The Convener: Perhaps you could get back to us on that. Our understanding is that the UK has John St Clair: Are you talking about the ratified the optional protocol where it does not requirements to give evidence? require— Stewart Stevenson: Yes. Robert Brown: I beg your pardon, but I think John St Clair: Evidence can be produced much that we are talking at cross purposes. Do you quicker than access to a place of detention can be mean the optional protocol to the convention? granted. That is why there is not such a long The Convener: I mean the optional protocol period in relation to evidence. against torture that the UK signed up to. The Stewart Stevenson: Okay. I will leave it there. protocol does not specify that there has to be an inquiry before the commissioner would get The Convener: How does that square with the immediate entry into a place of detention. optional protocol, which states that if an inquiry is being conducted, such a person should get Robert Brown: You are asking about the link immediate entry to “places of detention”? between the rights that the commissioner would have to help out— Robert Brown: That is under section 8. Sorry; can you repeat your question? I am not sure that I The Convener: My point is that we have signed follow your point. up to a protocol that gives more rights to a commissioner than the Scottish Commissioner for Human Rights Bill does. 183 †293 2669 18 JANUARY 2006 2670

Robert Brown: We will write to the committee to there is such a word—in criminal cases or in clarify the issue. In view of our discussion with the children’s hearings cases, which have similar committee, we might consider revising our aspects to criminal cases in some regards. There thoughts about the provision in schedule 3(2) on may or may not be a reason for intervention, but if the 14 days’ notice. Is that all right? there is, it should be considered generically, not with particular regard to the human rights The Convener: That is great. commissioner. We should consider whether Finally, I want to understand the Executive’s intervention is a good thing and how it would affect thinking in relation to the inspector of prisons. the speed of a case, the rights of the accused, and When we visited Westminster, we heard from the other sideways issues. Intervention in such cases Joint Committee on Human Rights that there were should not be a by-blow of the Scottish plans to abolish the inspector’s counterpart in Commissioner for Human Rights Bill; it should England and Wales. I want to check that the come about only after proper consultation on the Executive has no plans to do something similar implications that it might have across the board. here and that the inspector of prisons will still have The question is whether the human rights a role in Scotland. If we are to continue to have an commissioner’s right to intervene in proceedings inspector of prisons, I presume that the will lead to other people asking for leave to commissioner for human rights will work with intervene. Incidentally, the same applies to them. tribunals. If anything, a stronger case can be made, because tribunals are not criminal Robert Brown: Neither my officials nor I know proceedings and they do not relate to the of any plans to abolish the office of inspector of children’s hearings system in quite the same way. prisons in Scotland. I am pretty certain about that. The inspector of prisons will be one of the people We do not want to introduce a general right to whose functions the commissioner will want to intervene as a by-blow of the rights in the bill. If we avoid duplicating. We are more than happy to were to introduce such a right, we would do so engage with the committee on the details of how only after consultation on whether it is a good the budget for the commissioner will operate, his thing for people to have that right. As I understand or her relationship with the Scottish Parliamentary it, such rights are rarely used in Scotland in any Corporate Body and the question of the event and the procedure is nowhere near as duplication of functions, if the committee has developed or as common as it is in England and particular concerns about them. However, those Wales. To a degree, the issue is academic, but it issues do not particularly involve the principles of will be of importance more generally if the law the bill. Perhaps, in the light of the Finance develops. Committee’s report and other reports, the The Convener: Will the GB commission have committee has a view on those matters. We will, the power to intervene in criminal proceedings in as I say, be happy to talk to the committee about England and Wales? them. However, the inspectorate of prisons will not be treated any differently from any other Robert Brown: I think that there may be a right. inspectorate or commissioner in the field. Brian Peddie: Our understanding is that the GB The Convener: You have already dealt with commission will not be able to intervene in criminal some of the issues around the commissioner’s proceedings. There may be some confusion relationship with the Scottish courts. However, a because the Equality Bill is framed rather few issues were not covered and I would like to go differently from our bill. The Equality Bill confers over them now. Essentially, the Scottish what looks like a general power to intervene, but commissioner will have the power to intervene in that power is qualified. It is described as being court and the GB commission will have the power “subject to any … enactment … or in accordance with the to initiate proceedings. There is also the question practice of a court.” of the commissioner’s role in supporting wider human rights issues as opposed to individual Our understanding, given the existing procedures cases. and enactments, is that the GB commission will have no power to intervene in criminal cases in The bill specifies that the commissioner’s power England and Wales. of intervention will be restricted to civil proceedings. Will you amplify the policy intention The Convener: At any level. behind that? Brian Peddie: Yes. It will be possible for issues Robert Brown: Behind the general power to that arise from criminal cases to be raised in intervene was a desire to avoid the uncertainty another context, but not as part of the criminal that surrounded the Northern Ireland Human justice procedure. Rights Commission in that area. As I understand The Convener: The note that we have from our it, powers do not exist for other interventees—if discussion with officials from the Department for 184 †294 2671 18 JANUARY 2006 2672

Constitutional Affairs states that the GB The Convener: I think that we agree that, if we commission will have such a power. decide that the Scottish commissioner should not have the power to intervene, the drafting of the UK Brian Peddie: We can clarify that point in bill should not give them that power by the back writing, if that would be helpful. It might be that our door. However, we have raised drafting issues UK counterparts were making the point that, if the with the Department for Constitutional Affairs. We procedures in England and Wales were changed agree that intervention by the back door would not to allow intervention in criminal cases generally, be desirable, but there is nothing in the UK bill that the GB commission would be able to take specifically excludes it. Are you satisfied that the advantage of that change and intervene. That drafting of the bill does not allow such might be what they were getting at, but we will intervention? provide clarification in writing. The Convener: The power to intervene is 12:45 subject to the leave of the court. The commissioner must have permission from the John St Clair: The minister may want to make a court. statement to that effect during the passage of the Scottish bill, so that it is on record that powers are Robert Brown: Yes. not to be used in that particular way. I would leave The Convener: The Law Society said that it that for the minister to consider. could not see anything in the bill that would Robert Brown: The issue would be whether the prevent the commissioner from providing financial Equality Bill at Westminster accidentally changed support to enable individuals to bring cases, given the legislation on devolution. That would be a that the commission will not have title to take substantial constitutional issue, unless any change cases in the Scottish courts. were made expressly. United Kingdom ministers Robert Brown: The answer to that is relatively have been careful to make it clear that they have straightforward. The commissioner will have the no intention of doing anything of the sort. powers that are conferred by the bill. They will not John St Clair: There will be a memorandum of have a power of general competence that goes understanding between the Scottish Executive and beyond the general duties in the bill. The the department that is piloting the Equality Bill on commissioner’s powers have to be exercised for how the powers will operate. We would expect the the purpose of the general function in section 2. possible mischief that you envisage to be formally As the commissioner will not have a power of excluded in that agreement. general competence, our understanding is that it will not be competent for them to use funds in that Robert Brown: Apart from any consideration of particular way. If they did so, that would raise what might happen at our end, the GB commission issues. There was a discussion early on about will not operate in the way envisaged. That is the what would happen if the commissioner went bottom line. That is not the purpose for which the beyond their remit. The short answer is that there GB commission is being set up. UK ministers have would be questions about their ability to spend made that clear. their budget, which the Parliament will provide for The Convener: That is helpful. We may want to particular purposes. have further discussions at stage 2 on the impact The Convener: Finally, I have a question on an of the consent power and on what it means. issue that we have discussed already but I want to Mrs Mulligan: I want to ask about resources be sure that we have covered it. It is the Scottish and salaries. I am conscious of the time so I will commissioner’s power to consent to the GB try to be brief. commission acting in relation to a devolved matter. Does the drafting of the UK bill provide a back The Scottish Parliamentary Corporate Body and door for the Scottish commissioner to grant the Finance Committee have raised concerns consent for judicial review, given that they will not about the ambiguity over whether the SPCB will have the power to initiate proceedings? be responsible for setting the commissioner’s budget. Will the SPCB be responsible? Robert Brown: Our understanding is that that is not the case, but I look to my officials for clarity. Robert Brown: No. As I said before, I have considered this issue from the other side, as it John St Clair: There is no agenda to that effect. were. Oddly enough, when I was a member of the The bill builds on the provisions in the Equality Bill SPCB, one of my responsibilities was to deal with and there needs to be formal consent from the the commissioners. The wheel comes full circle. commissioner, but the provisions are not designed to allow the commissioner to initiate intervention At the time, the SPCB was rightly concerned not by the back door. That would be improper. to interfere with the commissioners’ independence. However, as Brian Peddie said in

185 †295 2673 18 JANUARY 2006 2674

evidence to this committee, giving independence not sufficient. The Finance Committee has does not mean offering a blank cheque. We think suggested that the issues that you have taken into that the bill will give adequate powers to the account to arrive at that figure are perhaps not as parliamentary authorities to deal with these robust as they might be. It is important to consider matters. I think that there were protocols with the the message that is given out about the budget SPCB that took into account how things had been that is set alongside our establishment of a human handled before and the powers of the Finance rights commissioner. Committee. Robert Brown: Yes. What is in the bill is okay, but this is not a matter Mrs Mulligan: Do you think that £1 million will of principle for us. If the committee has particular be sufficient? Will you keep that under review? concerns about the wording or about evidence that it has heard from the SPCB, we will be more than Robert Brown: Absolutely. At the end of the happy to discuss those concerns with members. day, the question is, “How long is a piece of However, I do not want to compromise the string?” We always encounter issues such as this independence of the commissioner. We must bear with budgets. A larger budget means that we can in mind the Paris principles, and the commissioner do more things more imaginatively; a smaller must not be too constrained. budget means that we are a bit more constrained. It is about striking a reasonable balance, paying Salary will be an issue for the parliamentary due regard to the proper use of public funds and authorities. People wondered whether the salary considering what will allow the commissioner and budget were right. They appear to be broadly reasonably to carry out his or her functions. in line with those of similar bodies, both here and elsewhere. If one removes the casework support We think that, broadly speaking, we have arrived for the Northern Ireland Human Rights at that balance. We have considered the Commission, there is parity with our proposals. experience of existing Scottish commissioners Northern Ireland began at £700,000. That has and, to an extent, that of other commissioners gone up to £1.3 million, but that takes into account abroad, not least the Northern Ireland Human the casework support. We are in the right ballpark. Rights Commission, which is probably the best One can always argue a little bit either way, but example to which we can equate. We think that we the Executive feels that it has got the levels about are in the same ballpark as the Northern Ireland right. commission. That is about as far as we can go. There will be a starting budget for the You should remember that the details that were commission but I would guess that not all of it will used for the financial memorandum were intended be spent in the first year of operation, as things to be illustrative. We did not want to constrain are being set up. After that, it will be for the either the corporate body or the commissioner by parliamentary authorities to consider whether the requiring a certain level of detail or going in a commissioner’s budget is adequate, appropriate certain direction. There is discretion there. Given and so on when bids are made to the Finance the experience of local authorities, with ring Committee for parliamentary funding in future fencing and so on, we know the importance of years. Arrangements for how all that is done may such issues. reasonably be entered into between the Scottish Parliamentary Corporate Body and the Mrs Mulligan: I do not want to question your commissioner under the ambit of the bill. judgment further but, should there be a shortfall, would it be appropriate for the SPCB to adjust the As you know, we have tightened things up in figures in responding to that shortfall through what certain respects, in that we have a location aspect: the SPCB witnesses described earlier today as a the parliamentary authorities may direct the contingency fund, or should the Executive pick it location of the commissioner. That measure arose up? from particular concerns that the Finance Committee had about the policy of dispersal— Robert Brown: I think that the question is an artificial one. The commissioner will not be entitled whether or not new bodies should be setting up in to overspend his or her budget. They are Edinburgh—and about the savings that might be accountable officers as far as the financial obtained through co-location with appropriate arrangements are concerned. I am not an expert partners. All the appropriate powers are there; the on all that but, like any other budget holder—such issue is really how the corporate body exercises as the parliamentary authorities and Executive them with regard to the commissioner, and the ministers—the commissioner will have a independence issue is somewhere in the middle. responsibility not to spend money that they do not Mrs Mulligan: You have answered a number of have. That is the bottom line. They must cut or questions there, but I want to be clear on this. A expand their cloth to meet the requirements of the number of witnesses have suggested that the £1 budget that they are given, and they must take million that the commissioner is to start out with is due account of the workload in doing so. 186 †296 2675 18 JANUARY 2006 2676

Having said that, I am not saying that That is against the background of the controls that consideration could not then be given to future are exercised through audit and in other respects. budgets, if the parliamentary authorities thought it That is no different from an individual budget—the right to seek an increase or, indeed, a reduction, bottom line is that if you ain’t got the money, you should that become appropriate at a later point. cannot spend it. That is an issue of future budgets, however, rather If an overspend occurred—although I do not than one of budget overspends, which should not envisage one—serious issues would arise about happen. the continuance of the commissioner or their chief Mrs Mulligan: My understanding of Nora executive in their role. However, an overspend Radcliffe’s response on the matter earlier is that, if should not occur, because the arrangement is a particular issue arose that had not been surrounded by the same provisions for proper foreseen, but that the commissioner felt it scrutiny and public accountability as apply to the absolutely essential to investigate—although to do other commissioners and to other bodies, such as so would not be possible within their budget— the SPCB. there would need to be some sort of contingency Stewart Stevenson: I understand the fiduciary to pay for that. Are you saying that that is not the duty that you describe and that the commissioner case? would have to give notice if they needed another Robert Brown: No, I am not saying that. That £23 million to do something, for example. I accept would be a matter of the budget being expanded that the bill contains the standard form of words. by agreement, and would be up to the corporate However, I still comment on them. body. It would have no implications for the I will move on to the following paragraph in Executive or for the rest of the budget. The schedule 1, which is on accounts and audit. I corporate body will take that action if it feels that it suspect that this is standard stuff, too. It says that has the contingency funding to do so. the commissioner has, in accordance with such I think that I am right in saying that an issue directions as the Scottish ministers may require, to arose with one of the commissioners about a legal “keep proper accounts and accounting records” action that they got involved in, and about the possible unexpected contingency. I suppose that and that might just happen in the odd instance, “prepare annual accounts”. although each case would have to be dealt with on its merits. However, that should not happen Is it not more proper for the corporate body, rather without people knowing about what is coming than ministers, to require the commissioner to do down the line, if you follow my point, and without that? Why are the ministers involved? particular permission being sought. Robert Brown: I may need guidance on that, Stewart Stevenson: I am not clear about the but I think that I am right in saying that that relates permission. Paragraph 13(b) of schedule 1, on to the general function not of controlling the finance, refers to commissioner, but of imposing proper standards. I guess that the corporate body acts under such an “any expenses incurred by the Commissioner in the arrangement, which links to the powers of the exercise of the functions of the Commissioner” auditor. and contains a qualification, which is just about getting money back for services rendered and John St Clair: The Public Finance and Accountability (Scotland) Act 2000 gives the does not matter to my question. In essence, the bill seems to say that the commissioner decides Scottish ministers such powers of direction in how much money they need. To an extent, that is relation to accounts. The bill mirrors those provisions. the intention behind section 12, which talks about the relationship between the corporate body and Stewart Stevenson: I will ask just for clarity. In the commissioner in developing plans, but essence, as I suspected, do exactly the same schedule 1 makes it unambiguously absolute that rules apply to the corporate body? as long as the commissioner can show that they are spending their money John St Clair: Yes. “in the exercise of the functions of the Commissioner”, Stewart Stevenson: Right—that is enough. we must pay up. Mike Pringle: The memorandum from the Finance Committee shows the budget for 2006-07, Robert Brown: That statement is a standard which I will not look at, and that for subsequent provision that is used for all commissioners. It is years, which neatly comes out at £996,000. We within the ambit of the accountable officer role that talked about whether the commissioner would you talked about, in paragraph 12 of schedule 1, want legal advice. We all acknowledge that going which is the same as that for other commissioners. down that road is expensive. 187 †297 2677 18 JANUARY 2006 2678

Robert Brown: You are talking about the Robert Brown: Do you mean on a point of financial memorandum, not the Finance principle? Committee’s report. Mike Pringle: Exactly. Mike Pringle: No—the figures are from the John St Clair: All criminal stuff is off limits, but Finance Committee, which laid out what it thought that does not mean that the commissioner could the budget might be after 2007. It has various not investigate the way that court services run. figures for the commissioners’ salaries, the You are talking about a case—criminal recruitment of staff, rent, acquisition, equipment proceedings. and running costs. One functional cost is for promotion and awareness raising. All that I am Mike Pringle: The Faculty of Advocates gave asking is, if the commissioner starts to receive an example. Valerie Stacey said: legal advice, as we discussed earlier, and they “The proper definition of the law of rape was taken to conduct any inquiries, do we seriously think that Lord Advocate’s references fairly recently. An example £175,000 will be enough? I would expect legal from some little time ago is whether killing someone by advice to be funded from promotion and injecting them with drugs is murder, culpable homicide or awareness raising, which is why I have doubts not a crime at all.”—[Official Report, Justice 1 Committee, about the ability to stick to £1 million. 11 January 2006; c 2609.] John St Clair: I see. If the matter is not within 13:00 the proceedings, that would be different. If a general question is being raised about definitions Robert Brown: The Finance Committee’s report and human rights, the commissioner would be lifted those figures from the financial memorandum covered by their duty to keep the law of Scotland that the Executive provided. I made the point under review in relation to human rights. before that the information is illustrative and represents the kind of costs that might be incurred. Robert Brown: I want to be content and I am The commissioner is entitled to make use of the not sure that that is quite right, because we are budget up to the limit that they are given in still talking about the commissioner being involved whatever way they want other than for their own in the context of a case. Are we talking about a salary. Therefore, more or less could be spent on reference forward for bench decision? promotion, legal inquiries or any other function. Mike Pringle: No. The case is finished. The financial memorandum does not include The Convener: We are talking about the Lord specific provision for the cost of inquiries, but Advocate’s specific power to refer any point of law travel costs are described as including travel for to a panel of judges, which he did in the examples the purpose of conducting inquiries. Our view is that Mike Pringle gave. To me, the answer is clear that it is not possible to make any realistic cut because, if the Lord Advocate’s reference was estimate of the cost of inquiries, as it would be on a criminal case, the commissioner would have necessary to make some assumption about the no locus. number of inquiries and how big or how little they were—they could be big inquiries with lots of Robert Brown: That is my thought. Is that right? expense or little ones with not very much. In any John St Clair: We had better come back to the event, in most inquiries, the main cost would be committee on that. Whether such a reference is the time of the commissioner and her staff—I still within the proceedings is a very narrow mean “his or her staff”; I said “her” because of the question. If it is not within the proceedings, the children’s commissioner, so please forgive me. commissioner is covered by the general function Such inquiries would not involve quite the same of keeping the law under review, but we will check costs as were involved in the Fraser inquiry or that out. some other public inquiry. Robert Brown: There are too many amateur Mike Pringle: Convener, can I go back to a lawyers like me involved in the argument. question that does not relate to finances? The Convener: Our adviser has pointed out one The Convener: I want to close the discussion, other question. Just for the purposes of so it must be brief. completeness, would the power of intervention Mike Pringle: Minister, I have a question on extend to the European Court of Human Rights in criminal cases, which arises out of evidence from Strasbourg? We believe that the Northern Ireland the Faculty of Advocates. Do you envisage that Human Rights Commission has intervened in the human rights commissioner would get involved Strasbourg proceedings, so there may be some when the Lord Advocate makes a reference at the precedent for such intervention. end of a criminal trial? I refer to when an accused Robert Brown: I think that that would be a has won an appeal—the Lord Advocate might matter for the court in Strasbourg, rather than the refer the case back for a decision of the court. 188 †298 2679 18 JANUARY 2006 2680

Scottish Parliament, to decide. There is a general There is one other matter to deal with while we power in section 11(8) of the bill, which says: are still in public. I ask members to agree that, at our next meeting, we meet in private to continue “This section is without prejudice to the Commissioner’s capacity to intervene in any proceedings before any court the discussion of our stage 1 report. Is that or tribunal under an enactment or in accordance with the agreed? practice of the court or tribunal.” Members indicated agreement. That is what I said, although the bill puts it in a slightly more technical way. The Convener: We move into private to discuss the contents of our stage 1 report. The Convener: You will be pleased to know that we have exhausted our lines of questioning. I thank you for being so clear in your answers and 13:06 for your thorough written evidence, which we will Meeting continued in private until 13:34. consider now and over the next few weeks as we put together our stage 1 report. I thank you and your officials for coming along.

189 †299 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

3rd Meeting, 2006 (Session 2), 18 January 2006, Supplementary Written Evidence

SUPPLEMENTARY SUBMISSION FROM SCOTTISH PARLIAMENTARY CORPORATE BODY

Budgetary Arrangements for the Proposed Scottish Human Rights Commissioner

May I firstly thank you for the opportunity to give evidence to the Committee with the SPCB’s views on the proposed Scottish Commissioner for Human Rights Bill.

One of the questions posed by the Committee was in relation to our proposal that greater clarity be put on the face of the Bill that the SPCB should have a directional power for budgetary approval of the Commissioner’s proposed budget on an annual basis. I agreed at the Committee meeting that I would formally write to you about how we see this proposal sitting with the UN General Assembly resolution 48/134 (the ‘Paris Principles’).

Under the proposed legislation, the funding for any expenditure by the Commissioner in undertaking his or her functions, together with office and staff costs will be met by the SPCB as part of its overall budget. Under the Public Finance and Accountability (Scotland) Act 2000, section1 on the use of resources provides that:

The use of resources by –

(a) the Scottish Administration, and (b) each body or office-holder (other than an office-holder in the Scottish Administration) whose expenditure is payable out of the Scottish Consolidated Fund (“the Fund”) under any enactment,

for any purpose in any financial year must be authorised for that year by Budget Act and must not exceed any amount so authorised in relation to that purpose.

There is therefore a requirement in primary legislation that budgetary provision for public bodies should be subject to approval.

At the end of the year the Accountable Officer, whether it is the Commissioner or another appointed person, will be accountable to the Parliament for any monies spent and will have to produce annual accounts which will be subject to audit by the Auditor General for Scotland.

In considering the issue of budgets, we recognise that section B2 of the ‘Paris Principles’ provides that:

“The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the government it need not be subject to financial control which might affect this independence.”

We consider within the proposed legislation these elements of adequacy and independence will be met. The draft legislation clearly states that the Commissioner will have his or her own staff and premises, although the staff complement, the associated terms and conditions and the location of premises will be subject to the approval of the SPCB. Clearly the Commissioner will be independent of government given the role of the Parliament. The financial review functions of the SPCB do not undermine independence. The SPCB has no powers of veto to prevent activities being undertaken by the Commissioners but its powers rather support the principle of adequacy of funding.

While we recognise that the ‘Paris Principles’ are a particularly helpful marker in establishing national human rights institutions, it is important to recognise that they are advisory in nature. This is reinforced in the recognition of choice throughout the principles. The principles ascribe aspirations and broad deliverables/goals but do not define the method or mode of delivery as it needs to reflect the local environment. This recognises that a balance needs to be struck – in this case a balance between the need to be able to monitor and account for expenditure and achieving independence.

190 †300 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

Having regard to this, it is our view that the Parliament must also have regard to the wider issue of public accountability for the use of public monies. There has been discussion recently about the growing expenditure of Commissioners and the need for Parliament to be able to control such expenditure. We consider therefore the SPCB’s suggestion, which is also recommended by the Finance Committee in its report on the financial memorandum on the Bill, for a directional power for budgetary approval would provide the clarity necessary to both the Parliament and the Commissioner in terms of budgetary approval.

As stated above, we do not anticipate that in having the SPCB approve the budget of the Commissioner this will in any way impact on the functional independence of the post. It will be entirely a matter for the Commissioner to determine what enquiries or promotional work it should undertake within an agreed budget for a particular year.

In agreeing a budget for any financial year, the SPCB would enter into a dialogue with the Commissioner over his or her budget proposals, as it does at present with the existing Commissioners and Ombudsmen. Based on this dialogue we would normally expect the budget proposal to be put to the Finance Committee as part of the SPCB’s budget proposals.

Should for whatever reason, the SPCB have reservations about the size of budget proposed, for example if it considered a programme of work (regardless of its nature) as being over ambitious for a single financial year when taking account of all the other activities proposed as part of the budget submission, then we consider the SPCB should have the power not to agree the budget and to invite the Commissioner to present a revised budget which can be agreed.

In the event of failure to achieve agreement, the existing protocol provides Commissioners and Ombudsman with a right of appeal to the Finance Committee to justify their proposed budget bid.

We also consider this would not preclude the Commissioner making a further bid for additional monies during the financial year should it become apparent that an urgent inquiry, for example, was necessary which could not have been foreseen at the time the budgets were being agreed. The SPCB has already agreed, with the existing Commissioners and Ombudsmen, provisions to take into account occasions where additional funds to the original budget for any financial year are required on an exceptional basis. The procedure for this provision is set out in a Memorandum of Understanding on Access to the Officeholders’ Contingency Fund held by the SPCB should be followed.

This provides that any bids should be submitted to the SPCB by way of a certification explaining the purpose of the funding. Where there are insufficient funds in the Officeholders’ contingency fund then the SPCB shall consider whether it is possible to meet the additional funding from elsewhere in the SPCB’s overall budget. Where additional funding cannot be met from the SPCB’s resources, a bid for additional funding will be submitted to the Finance Committee as part of the in-year budget revision process.

In summary, therefore, we do not consider that the checks and balances which are in place with regard to: the approval by the SPCB of budgets; the Finance Committee's role; the duty of the Accountable Officer; the powers of Audit Scotland; and the obligation to lay reports before the Parliament, are in any respect, in conflict with the ‘Paris Principles’. Indeed, we consider that the arrangements as structured give assurance of operational independence to Commissioners whilst, at the same time, providing accountability for the expenditure of public funds.

I hope this explanation will be helpful to the Committee but should you require any further information please do not hesitate to contact me.

Yours sincerely Nora Radcliffe MSP Member of the Scottish Parliamentary Corporate Body

191 †301 Justice 1 Committee, 1st Report 2006 (Session 2) – ANNEXE D

SUPPLEMENTARY SUBMISSION FROM THE SCOTTISH EXECUTIVE

During the Scottish Executive’s evidence to the Justice 1 Committee at Stage 1 of the Scottish Commissioner for Human Rights Bill, the Committee asked for various items of further information. This letter is in response to 2 of those requests.

Firstly, the Committee requested information on examples of human rights commissions or similar bodies in other countries. In response, Annex A to this letter provides a summary of information on a number of national human rights institutions. This is not an exhaustive list of such institutions: the International Co-ordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) currently lists 72 institutions as being accredited to it. It does however cover all those institutions on which we collected detailed information in the context of developing the Executive’s proposals.

I should add that we gave more detailed consideration to some institutions on this list than to others in this context. In particular, we paid especially close attention to the human rights commissions in Northern Ireland and the Irish Republic, since those were the ones that seemed to have the most relevance to Scotland in terms of their legal and institutional context. We also looked in some depth at the commissions in Australia, Canada, New Zealand and South Africa. The table in Annex A includes a note of the accreditation given to each institution by the International Co-ordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC). The ICC is a representative body of national human rights institutions established for the purpose of creating and strengthening such institutions which are in conformity with the Paris Principles. It performs this role through encouraging international co-ordination of joint activities and co- operation among these institutions, organising international conferences, liaison with the United Nations and other international organisations and, where requested, assisting governments to establish a national institution.

Such accreditation shows the extent to which the ICC has assessed each institution as complying with the Paris Principles, which the Committee will recall are the guidelines on national human rights institutions that have been drawn up by the United Nations. I have therefore also attached by way of supporting explanation Annex B, which sets out the criteria applied by the ICC in carrying out such assessments.

Secondly, the Committee asked for a list of a list of the international human rights instruments that the UK has ratified and a broad description of what they are about. I therefore attach Annex C, which provides a summary and explanation of the context relating to such instruments along with a more detailed explanation of the most significant instruments.

I hope that this is information is helpful. However, please let me know if the Committee wishes further information. Yours sincerely

BRIAN PEDDIE Head of Human Rights and Law Reform 25 January 2006

192 †302 ANNEX A

COMPARATIVE TABLE OF NATIONAL HUMAN RIGHTS INSTITUTIONS

The table below provides summary information on national human rights institutions considered by the Scottish Executive in the course of developing its proposals for a Scottish Commissioner for Human Rights. This is not an exhaustive list of such institutions: the International Co-ordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) currently lists 72 institutions as being accredited to it. The information below is believed to be correct as at the date it was collected by the Executive for the purpose of informing development of the proposals for a Scottish Commissioner for Human Rights over the period 2003-05, and so may not represent the position as at January 2006.

COUNTRY NAME ESTABLISHED ACCOUNTABLE TO MEMBERSHIP COMPLAINTS ACCREDITATION HANDLING CLASSIFICATIONi Albania The Peoples 2000 Assembly 3 Commissioners Yes A Advocate

Australia Human Rights and 1986 Federal Parliament A president and 5 Can offer A Equal Opportunity Commissioners conciliation

193 Commission support, if this is not successful the Commission terminates process and individual can take the case to court.

Austria The Austrian 1977 National Assembly 3 members, one of Can carry out B Ombudsman Board whom is the investigations Chairman based on an individuals complaint and make recommendations. Can support citizens in legal actions.

†

303 † 304

Canada Canadian Human 1978 Appointed by Governor Chief Commissioner Can help parties A Rights Commission in Council: can be and up to 7 part resolve disputes of removed by the time Commissioners discrimination Governor in Council on (Commission also address of the Senate enforces and House of Commons Employment Equity Act) and can investigate individual complaints

Denmark The Danish Institute 2003 (replacing Independent/ self 13 members of the No A for Human Rights earlier body) governing board appointed by internal bodies.

France National Consultative 1990 Independent. Annual Over 6 members. No A Commission of report presented to Amongst the

194 Human Rights government, funding members is an MP, from Prime Ministers senator and budget. representative of the Prime Minister. All members are appointed by order of the Prime Minister

India National Human 1993 The President A Chief Justice and Can investigate A Rights Commission 2 members with individual experience as complaints, can judges of Supreme subsequently court and High recommend a court. 2 further Court take up the members with case. Human Rights expertise.

Ireland Irish Human Rights 2000 Parliament Committees 15 Commissioners Can provide legal A Commission appointed by the assistance to

Government for 15 individuals, can years. 7 male and 7 appear as amicus female. curie and/or take cases to court.

New Zealand Human Rights 1978 Minister of Justice and A Chief Can provide A Commission via the Minister Commissioner Race mediation service Parliament Relations for individual Commissioner complaints on Equal Employment discrimination Commissioner + 5 issues. Can p/t Human Rights pursue other Commissioners complaints informally and also provide legal representation for complainants.

195

†

305 † 306

Poland Commissioner for 1987 Parliament 1 Commissioner Can give advice A Civil Rights Protection and take up cases

Portugal Ombudsman Office 1975 Parliament 1 Ombudsman and Can carry out A 2 deputies investigations based on an individuals complaint and provide recommendations

Romania Advocate of the 1997 Parliament The Advocate plus Can carry out Not accredited People two deputies investigations based on individual’s complaint and request that the breach is rectified.

196 South Africa South African Human 1995 The President and 1 Chairperson and 4 Can carry out A Rights Commission Parliament members investigations, offer conciliation, mediation or negotiation, can bring a case to Court on behalf of an individual or group of individuals.

Spain The Office of the 1982 Parliament Ombudsman and Can carry out A Ombudsman two deputies investigations based on individuals complaint, make recommendations and/or instigate legal proceedings

Sri Lanka The Human Rights 1996 Parliament 1 Chairman and 4 Can investigate A Commission of Sri Commissioners and offer Lanka appointed by the mediation on President individual complaint.

197 1 This is the classification given to each institution by the International Co-ordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) to show the ICC’s assessment of the institution’s compliance with the Paris Principles. The classifications are: A Compliant A(R) Accreditation with reserve - preliminary analysis suggests A compliance but insufficient documents B Observer Status - not fully in compliance or insufficient documentation C Non-compliant

†

307 † 308

ANNEX B ACCREDITATION OF NATIONAL INSTITUTIONS (as published by the International Co-ordinating Committee)

CRITERIA COMPLIANCE SUPPORTING DOCUMENTS

MANDATE AND STRUCTURE [Explain the [Provide a copy of your Is the institution established by relationship between founding document] your mandate & Constitutionҏҏ structure and your Legislation: founding document] Decree Other}

ACCOUNTABILITY [Indicate line of [Provide the relevant What is the nature of the institution’s accountability? accountability and provision or other

198 how the institution is relevant documentation] Executive (Prime Minister/Head of State/King, etc): accountable] Legislative...... Other......

PROTECTION &PROMOTION FUNCTIONS Are these functions of protection & promotion specifically defined in law? [If yes explain where [Provide the relevant defined and what section/article or other those functions are, relevant evidence] if no, give reasons]

RESPONSIBILITY Does the institution have responsibility to [In each of these [Please provide subcategories of evidence of submit opinions, reports & recommendations to government/parliament on any matter concerning responsibility; responsibilities protection/promotion of human rights and without prior authorization?...... if yes please provide preferably through an indication of founding document or promote consistency between domestic legislation and international human rights instruments? where these roles otherwise as required are articulated and including reports and encourage ratification of such instruments in co-operation with the UN and regional & national expand on them, recommendations,

CRITERIA COMPLIANCE SUPPORTING DOCUMENTS institutions? if no, please interactions with describe current government & UN, contribute independently of government to UN responsibilities] examples of education reporting?}}}}}}}}}}...... programs as well as public relations/media conduct research & education programs on human rights? plans]

ҏincrease public awareness of human rights issues?

199 † 309 † 310

INDEPENDENCE

Is the independence of the institution guaranteed by [Describe how the [Provide copies of the independence of the relevant provisions or pluralist composition? institution is regulations ensuring guaranteed & the independence including appointment & dismissal process established by law with fixed term & renewable? relationships it has membership details, with government. If budgetary financial autonomy derived from stable, adequate funding? any of these criteria documentation, location are not currently met, and resourcing legal & operational autonomy through separate legislation, infrastructure, staff & resources? explain why] information]

METHOD OF OPERATION

Is the institution free to:

meet regularly & as required [Describe in detail [Provide copies of how the institution minutes of meetings,

200 review any matter within own jurisdiction on referral from government, by individual complaint or suo operates in relation provisions relating to moto? to its mandate] powers to obtain information and collect hear any person & obtain any information related to a matter within jurisdiction? evidence, annual reports and make public its findings & recommendations (eg through annual report)? geographical branches] . establish local & regional sections?

maintain consultation with other bodies (e.g. NGOs) when carrying out its functions?

ADDITIONAL CRITERIA - INSTITUTIONS WITH QUASI-JUDICIAL COMPETENCE [Explain in detail any [Provide evidence of Is the institution competent to potentially hear individual complaints? complaint handling quasi-judicial function of the competence through institution including founding document if potentially seek settlement through conciliation or binding decisions, with confidentiality? nature of complaints applicable. Provide and methods of evidence of complaint inform the complainant of their rights & remedies and ensure the process is accessible? resolution] load & any relevant statistics on volume, type and method & potentially make recommendations to competent authorities, make enforceable decisions or refer to success in resolution.

specialised tribunal? Provide any public information document/brochures/co ntact details ensuring accessibility]

GENERAL INFORMATION ¾ Type of institution: [Specify which type [Provide public Commission of institution you information - booklet, Ombudsman belong to; if a website, publication - Other(specify)...... mixture of both, which describe your ...... please identify areas type of institution; with of difference and respect to its ¾ Jurisdiction: similarities with jurisdiction, indicate if Domestic: either] individual commission Public members hold individual sector...... mandates/areas of . expertise or share Private common grounds]

201 sector...... International......

¾ Scope of jurisdiction: General...... Thematic (specify) ......

†

311 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

ANNEX C International Human Rights Instruments Ratified by the UK

1. The instruments to which the UK is a party are generally drawn from either the UN or the Council of Europe.

UN instruments 2. The Office of the High Commissioner for Human Rights lists over 100 UN international human rights instruments (www.unhchr.ch/html/intlist.htm). These can be classified into two categories: declarations adopted by bodies such as the General Assembly, which are not legally binding; and conventions, which are legally binding instruments concluded under international law. Declarations are not subject to ratification by national governments, so they will not fall within the remit of the Scottish Commissioner for Human Rights as described in section 2(b) of the Bill. The list below includes only those conventions which have been ratified by the UK Government.

3. The list includes a number of International Labour Organisation (ILO) Conventions. The ILO is a UN specialised agency whose work focuses on setting, monitoring and upholding rights and standards at work. This includes economic and social rights (such as the right to work, to favourable conditions of work, to form and join trade unions, to social security and to an adequate standard of living), and civil and political rights (such as freedom of association, the right to organise, and the right to peaceful assembly). The ILO works for the implementation of these rights by adopting conventions and recommendations setting standards, supervising the application of these standards, operating complaints procedures and assisting Governments to give practical effect to the rights. Over 180 conventions have been adopted by the ILO, but the list below includes only those 12 that are considered by UNESCO and the UN High Commissioner for Human Rights to be significant international human rights instruments.

4. The main international human rights treaties of the UN that establish committees of experts (often referred to as “treaty bodies”) to monitor their implementation. The titles of these conventions are marked in bold type.

Council of Europe instruments 5. There are 201 Council of Europe treaties which can be found listed in their entirety at http://conventions.coe.int. The majority of the treaties relate to co-operation between member states on social, economic and legal matters other than human rights. Examples of these include the European Convention on Transfer of Proceedings in Criminal Matters and the European Convention on International Commercial Arbitration. The attached list includes the 15 treaties that are most commonly understood to be human rights instruments and have been ratified by the UK Government.

6. We have further edited the list by not including those human rights instruments ratified by the UK which deal with procedural rather than substantive issues. Examples of these include the two protocols to the European Convention for the Prevention of Torture, the first of which allows non-member states to sign the Convention, and the second which describes the terms of office for the members of the relevant monitoring committee. Instruments of this sort would not affect the range of subjects within the Commissioner’s remit.

International humanitarian law 7. We have not included summaries of the conventions on international humanitarian law (the “Geneva Conventions”), although they are often considered to be human rights instruments and have been ratified by the UK. It is difficult to envisage a situation in which the terms of the conventions, which deal with situations of war and violent conflict, would fall within the Commissioner’s devolved remit. However, their titles are: x Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949)

202 †312 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D x Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (1949) x Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) x Geneva Convention relative to the Treatment of Prisoners of War (1949) x Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977) x Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977)

Duplication 8. It is perhaps worth pointing out that there is a considerable amount of duplication between the various instruments in the list. For example, the prohibition of slavery is included in the terms of the International Covenant on Civil and Political Rights and the European Convention on Human Rights, but is also the subject of three other, more specific instruments (the Slavery Convention, the Protocol amending the Slavery Convention and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery). This is partly because in many cases the UK is party to both world-wide conventions and their regional counterparts; because many of the broad instruments include references to subjects covered by more specialised treaties; and because new instruments are created over time to reflect developing human rights thinking and changes in the international environment.

203 †313 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

INTERNATIONAL HUMAN RIGHTS INSTRUMENTS RATIFIED BY THE UK

INSTRUMENT SUMMARY

UNITED NATIONS INSTRUMENTS International Key rights: Covenant on x Right to self-determination Economic, Social and x Equal right of men and women to the enjoyment of all rights in the Cultural Rights Covenant (ICESCR) x Right to work x Right to the enjoyment of just and favourable conditions of work x Right to form trade unions and join the trade union of choice x Right of trade unions to establish national federations or confederations x Right to strike x Right of everyone to social security, including social insurance x Widest possible protection and assistance should be accorded to the family x Right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions x Right to be free from hunger x Right to the enjoyment of the highest attainable standard of physical and mental health x Right to education x Right to take part in cultural life x Right to enjoy the benefits of scientific progress and its applications x Right to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author

International Key rights: Covenant on Civil and x Right to self-determination Political Rights x Right to life (ICCPR) x No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment x Prohibition of slavery x No one shall be held in servitude x Prohibition of forced or compulsory labour x Right to liberty and security of person x Prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation x Right to liberty of movement and freedom to choose residence x Equality before the courts and tribunals x Presumption of innocence until proved guilty x Rights in relation to a fair criminal trial x No punishment without law x Right to recognition everywhere as a person before the law x No one shall be subjected to arbitrary or unlawful interference with privacy, family, home or correspondence, nor to unlawful attacks on honour and reputation x Right to freedom of thought, conscience and religion x Right to hold opinions without interference x Right to freedom of expression x Prohibition of propaganda for war x Prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence x Right of peaceful assembly

204 †314 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

x Right to freedom of association with others, including the right to form and join trade unions x Right of men and women of marriageable age to marry and to found a family x Right of children to protection as required by status as a minor, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, x Right to take part in the conduct of public affairs, directly or through freely chosen representatives x Right to vote and to be elected x Universal and equal suffrage x Secret ballot x Right to have access public service

Second Optional This protocol abolishes the death penalty in all circumstances. Protocol to the International Covenant on Civil and Political Rights (ICCPR)

International Key undertakings: Convention on the x to engage in no act or practice of racial discrimination; Elimination of All x not to sponsor, defend or support racial discrimination; Forms of Racial x to take effective measures to review policies and to amend any laws Discrimination and regulations which have the effect of creating or perpetuating (ICERD) racial discrimination; x to prohibit and bring to an end by all appropriate means racial discrimination by any persons, group or organization; x to encourage integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division; x to take special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing their human rights; x to condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in their jurisdiction; x to condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form; x to declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination; x to declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination; x not to permit public authorities or public institutions, national or local, to promote or incite racial discrimination; x to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone to equality before the law; x to assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination; x to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, to combat prejudices which lead to racial discrimination and to promote understanding,

205 †315 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

tolerance and friendship among racial or ethnical groups.

Convention on the Key undertakings: Elimination of All x To adopt appropriate legislative and other measures, including Forms of sanctions where appropriate, prohibiting all discrimination against Discrimination women; Against Women x To establish legal protection of the rights of women on an equal (CEDAW) basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; x To refrain from engaging in discrimination against women and to ensure that public authorities and institutions act in conformity with this obligation; x To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; x To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; x To repeal all national penal provisions which constitute discrimination against women.

Optional Protocol to The protocol gives individuals or groups of individuals to directly petition the Convention on the the CEDAW monitoring committee regarding alleged breaches of their Elimination of All rights under the Convention. A petition can only be made if all domestic Forms of remedies have been exhausted. The Committee may conduct an Discrimination enquiry if they consider the petition to be well-founded. Against Women Convention on the The CRC requires states to ensure that children enjoy the protection of Rights of the Child the many rights set out in instruments like the ICCPR and the ICESCR, (CRC) such as the right to life, the right to a fair trial, the right to education, the right to health, and the right to freedom of expression. It also includes a number of articles that deal with issues that are specific to children, including: x ensuring that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine that such separation is necessary for the best interests of the child. x combating the illicit transfer and non-return of children abroad. x respecting the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. x the rights of the child to freedom of association and to freedom of peaceful assembly. x ensuring recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. x ensuring that children of working parents have the right to benefit from child-care services and facilities for which they are eligible. x protecting the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. x the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development x the right of the child to education. They shall, in particular: make primary education compulsory and available free to all; encourage the development of different forms of secondary education; make higher education accessible to all on the basis of capacity; make

206 †316 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

educational and vocational information and guidance available and accessible to all children; x ensuring that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the Convention x the right of the child to be protected from economic exploitation and from performing any work that could be hazardous or interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development. x protecting children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances. x protecting the child from all forms of sexual exploitation and sexual abuse. x preventing the abduction of, the sale of or traffic in children for any purpose or in any form. x encouraging the mass media to disseminate information and material of social and cultural benefit to the child.

Optional Protocol to This protocol requires state parties to take all feasible measures to the Convention on the ensure that members of their armed forces who have not attained the Rights of the Child age of 18 years do not take a direct part in hostilities, and prohibits the (involvement of compulsory recruitment of persons who have not attained the age of 18 children in armed years into their armed forces. conflicts)

Optional Protocol to The protocol prohibits the sale of children, child prostitution and child the Convention on the pornography. It describes the kinds of activity that should, as a Rights of the Child minimum, be covered by states’ criminal law. (Sale of children, child prostitution and child pornography)

Convention Against Key undertakings: Torture and other x to take effective legislative, administrative, judicial or other measures Cruel, Inhuman or to prevent acts of torture in any territory under its jurisdiction Degrading Treatment x not to expel, return or extradite a person to another State where or Punishment there are substantial grounds for believing that he would be in (UNCAT) danger of being subjected to torture x to ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture x to make these offences punishable by appropriate penalties which take into account their grave nature x to make statements made as a result of torture are inadmissible in legal proceedings.

Additionally, the Convention sets out requirements for state parties to take into custody those who there are reasonable grounds to believe may be guilty of torture and either extradite or prosecute them. State parties are also required to ensure that the prohibition on torture is included in education and training of officials who may be involved in the custody, interrogation or treatment of detainees.

207 †317 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Optional Protocol to The protocol establishes a system of regular visits undertaken by the Convention independent international and national bodies to places where people Against Torture and are deprived of their liberty, in order to prevent torture and other cruel, other Cruel, Inhuman inhuman or degrading treatment or punishment. It describes the or Degrading requirements for bodies to qualify as part of the “national preventive Treatment or mechanism” (broadly, functional independence and the power to visit Punishment (OPCAT) and inspect places of detention) and sets out the relationship between such bodies and a monitoring subcommittee of UNCAT. Convention Against Key undertakings: Discrimination in x To abrogate any statutory and administrative requirements that lead Education to discrimination in education x To ensure that there is no discrimination in the admission of pupils to educational institutions x Not to allow any differences of treatment by the public authorities between nationals in the matter of school fees, scholarships or other assistance x Not to allow any restrictions or preference based solely on the ground that pupils belong to a particular group x To give foreign nationals resident within their territory the same access to education as that given to their own nationals x To formulate a national policy which tends to promote equality of opportunity and of treatment in the matter of education x To make primary education free and compulsory; make secondary education in its different forms generally available and accessible to all; make higher education equally accessible to all on the basis of individual capacity; assure compliance by all with the obligation to attend school prescribed by law x To ensure that the standards of education are equivalent in all public education institutions of the same level x To encourage the education of persons who have no or partial primary education x To provide training for the teaching profession without discrimination

The Convention makes further statements on the direction and purpose of education; the respect for liberty of parents and legal guardians; and the rights of national minorities to carry on their own educational activities.

The Convention explicitly excludes from the definition of “discrimination” the maintenance of separate institutions for the two sexes; the maintenance of separate systems for religious or linguistic reasons (if they are optional); and the establishment of private educational establishments (as long as their purpose is not to secure exclusion of any group but to provide facilities in addition to the public system).

Convention on the The Convention requires that State Parties recognise that genocide is a Prevention and crime in international law that they will seek to prevent and punish. It Punishment of the sets out a definition of genocide and lists those acts to be punishable Crime of Genocide (including conspiracy, incitement and complicity in genocide as well as the act itself).

Persons charged shall be tried either by a competent tribunal in the state where the act took place or by an international penal tribunal.

The Slavery State parties “undertake, each in respect of the territories placed under Convention 1926 its sovereignty, jurisdiction, protection, suzerainty or tutelage, so far as (League of Nations) they have not already taken the necessary steps to prevent and suppress the slave trade; an to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.”

208 †318 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

This was a League of Nations instrument that lost some of its legal force when the League ended and its duties could not be fulfilled. Its full force was restored by the UN protocol below.

Protocol amending Signatories of this protocol accept that it is expedient that the UN should the Slavery take up the duties and functions of the League set out in the 1926 Convention Slavery Convention above, thereby “refreshing” it and giving it continuing legal force. Supplementary This convention defines certain specific practices as “slavery”, including Convention on the debt bondage; serfdom; a woman being given in marriage against her Abolition of Slavery, will on payment of a consideration; and the delivery of children under 18 the Slave Trade, and for exploitation. Institutions and practices similar to This instrument includes additional provisions on the slave trade and on Slavery international co-operation to abolish slavery in all its forms.

Convention relating to This Convention relates specifically to the treatment and legal status of the Status of people made refugees in Europe during the Second World War. Its Refugees provisions include: x Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order. x The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children x Protocol relating to The protocol extends to protections set out in the Convention relating to the Status of the Status of Refugees to refugees in other contexts. Refugees

Convention relating to This Convention applies the same protections described in the the Status of Convention relating to the Status of Refugees to persons made stateless Stateless Persons by the Second World War.

Convention on the This requires states to accept applications for nationality from persons Reduction of born in their territory who would otherwise be stateless. Statelessness

Convention on the This Convention recognises the equality of women in voting in elections; Political Rights of eligibility for elections; and the holding of public office. Women

Convention on x No marriage shall be legally entered into without the full and free Consent to Marriage, consent of both parties; Minimum Age for x States Parties shall take legislative action to specify a minimum age Marriage and for marriage; Registration of x All marriages shall be registered in an appropriate official register by Marriages the competent authority. x INTERNATIONAL LABOUR ORGANISATION INSTRUMENTS Discrimination in States undertake to promote equality of opportunity and treatment in Employment (C111) respect of employment and occupation

States undertake to enact legislation and to promote educational programmes to achieve such equality; and to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy;

209 †319 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

The convention deems special measures taken by states to meet the particular requirements of certain groups (for reasons such as age, disablements or family responsibilities) not to be discrimination.

Employment Policy States are required to pursue full, productive and freely chosen (C122) employment, in particular with a view to ensuring that: x there is work for all who are available for and seeking work; x such work is as productive as possible; x there is freedom of choice of employment and opportunity for everyone to qualify for, and to use his skills and endowments in, a job for which he is well suited. The convention recognises that the particular circumstances of states need to be taken into account and a wide margin of discretion is given to national authorities.

Equal Remuneration Each Member shall promote and ensure the principle of equal (C100) remuneration for men and women workers for work of equal value by means of: x National laws or regulations; x Legally established or recognised machinery for wage determination; or x Collective agreements between employers and workers.

Forced Labour (29) States undertake to suppress the use of forced labour, which, in the terms of the Convention, does not include: x military service or other such civil obligations; x work or service as a consequence of a conviction in a court of law; x work or service exacted in cases of emergency, such as fire, flood, famine, earthquake, violent epidemic, etc, and in general any circumstance that would endanger the existence or the well-being of the population; x minor communal services considered as normal civic obligations. The convention goes into some detail about procedures for oversight of these exceptions, as well as specific prohibitions on the use of forced labour for private gain.

Freedom of Sets out the right of workers and employers to establish and join Association and organisations of their own choosing without previous authorisation. Protection of the Rights to Organise It further described the freedom such organisations have to draw up their (C87) own constitutions, join confederations, have legal personality, etc.

Minimum Age (C138) Provides for the abolition of child labour and requires states to set a minimum working age, not less than 18 where the nature of the work is likely to jeopardise the health, safety or morals of young persons.

Organisation of Rural Guarantees the rights of rural workers to form organisations. Workers and their Role in Economic and Social Development (141)

Protection and Protects workers' representatives from prejudicial treatment, such as Facilities to be dismissal, based on their status or activities as a workers' afforded to Worker’s representative or member of a union, provided their actions are within Representatives in the the law. Representatives should have access to the necessary facilities Undertaking (135) to allow them to fulfil their functions.

210 †320 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Protection of the Provides public employees with protection against acts of anti-union Right to Organize and discrimination in respect of their employment and guarantees the Procedures for independence of public employee’s organisations from public authorities. Determining It further provides that facilities should be available to representatives; Conditions of protects the rights of employees in discussions determining terms and Employment in the conditions of employment; requires processes be in place for the Public Service (151) settlement of disputes; and recognises the general civil and political rights of public employees. Right to Organise and States that Workers shall enjoy adequate protection against acts of anti- Collective Bargaining union discrimination in respect of their employment. (C98)

Rights of Association Requires states to secure to all those engaged in agriculture the same and Combination on rights of association and combination as to industrial workers, and Agricultural Workers repeal any statutory or other provisions restricting such rights in the case (11) (1921) of those engaged in agriculture

Worst Forms of Child States undertake to prohibit and prevent the worst forms of child labour: Labour (C182) x all forms of slavery or practices similar to slavery, such as the sale of a child; trafficking of children; debt bondage or any other form of bonded labour or serfdom; forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; x commercial sexual exploitation of children, including the use, procuring or offering of a child for: prostitution; the production of pornography or for pornographic performances; use, procuring or offering of a child by others for illegal activities, also known as Children used by adults in the commission of crime, including the trafficking or production of drugs.

COUNCIL OF EUROPE INSTRUMENTS European Convention Section I sets out the key rights: on Human Rights x Right to life x Prohibition of torture x Prohibition of slavery and forced labour x Right to liberty and security x Right to a fair trial x No punishment without law x Right to respect for private and family life x Freedom of thought, conscience and religion x Freedom of expression x Freedom of assembly and association x Right to marry x Right to an effective remedy x Prohibition on discrimination Section II establishes the European Court and sets out its rules of procedure. Section III makes various miscellaneous provisions on the powers of the Secretary General, Council of Ministers, etc.

European Convention x Protection of property on Human Rights x Right to education Protocol 1 x Right to free elections x European Convention x Freedom of movement on Human Rights x Prohibition on expulsion of nationals Protocol 4 x Prohibition on collective expulsion of aliens x

211 †321 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

European Convention Abolition of the death penalty in all circumstances on Human Rights Protocol 13 European Social The Charter guarantees 19 fundamental social and economic rights. The Charter Charter stipulates that any State wishing to become a Party must undertake to be bound by at least 10 of them. However, of the seven Articles regarded as particularly significant, each Party must accept at least five. These seven are: x the right to work x the right to organise x the right to bargain collectively x the right to social security x the right to social and medical assistance x the right to the social, legal and economic protection of the family, and x the right to protection and assistance for migrant workers and their families.

The other 12 are: x the right to safe and healthy working conditions. x the right to a fair remuneration sufficient for a decent standard of living. x the right to a special protection for children against the physical and moral hazards. x the right to a special protection in their work for women in case of maternity. x the right to appropriate facilities for vocational. x the right to appropriate facilities for vocational training. x the right to benefit from any measures enabling the highest possible standard of health attainable. x the right to benefit from social welfare services. x the right to vocational training, rehabilitation and resettlement for the disabled. x the right to appropriate social and economic protection for mothers and children. x The right of nationals of any one of the Contracting Parties to engage in any gainful occupation in the territory of any one of the others on a footing of equality with the nationals of the latter, subject to restrictions based on cogent economic or social reasons.

The Charter establishes a supervisory system of national reports submitted every two years for examination by a committee of seven independent experts. The Governmental Committee then presents to the Committee of Ministers of the Council of Europe a report containing its conclusions, to which the report of the Committee of Independent Experts is appended. The Committee of Ministers may make any necessary recommendations to the governments concerned.

Convention for the This Convention is the first binding international instrument which Protection of protects the individual against abuses which may accompany the Individuals with collection and processing of personal data and which seeks to regulate regard to Automatic at the same time the trans-frontier flow of personal data. Processing of Personal Data

212 †322 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

European Convention The Convention provides for the setting up of an international committee for the Prevention of empowered to visit all places where persons are deprived of their liberty Torture and Inhuman by a public authority. The committee, composed of independent experts, or Degrading may make recommendations and suggest improvements in order to Treatment or strengthen, if necessary, the protection of persons visited from torture Punishment and from inhuman or degrading treatment or punishment.

European Agreement The Agreement aims to secure the adoption of standard rules to on Transfer of determine which State is to assume the responsibility for a refugee, in Responsibility for particular in connection with the issue of travel documents. The Refugees Agreement lays down, among other things, the conditions in which responsibility for issuing a travel document is transferred from one Party to another when a refugee changes his/her place of residence.

European Charter for This treaty aims to protect and promote the historical regional or minority Regional or Minority languages of Europe. It was adopted, on the one hand, in order to Languages maintain and to develop the Europe's cultural traditions and heritage, and on the other, to respect an inalienable and commonly recognised right to use a regional or minority language in private and public life. First, it enunciates objectives and principles that Parties undertake to apply to all the regional or minority languages spoken within their territory: respect for the geographical area of each language; the need for promotion; the facilitation and/or encouragement of the use of regional or minority languages in speech and writing, in public and private life (by appropriate measures of teaching and study, by trans- national exchanges for languages used in identical or similar form in other States). Further, the Charter sets out a number of specific measures to promote the use of regional or minority languages in public life. These measures cover the following fields: education, justice, administrative authorities and public services, media, cultural activities and facilities, economic and social activities and trans-frontier exchanges. Each Party undertakes to apply a minimum of thirty-five paragraphs or sub- paragraphs chosen from among these measures, including a number of compulsory measures chosen from a "hard core". Moreover, each Party has to specify in its instrument of ratification, acceptance or approval, each regional or minority language, or official language which is less widely used in the whole or part of its territory, to which the paragraphs chosen shall apply. Enforcement of the Charter is under control of a committee of experts which periodically examines reports presented by the Parties.

Framework The Convention is the first legally binding multilateral instrument Convention for the concerned with the protection of national minorities in general. Its aim is Protection of National to protect the existence of national minorities within the respective Minorities territories of the Parties. The Convention seeks to promote the full and effective equality of national minorities by creating appropriate conditions enabling them to preserve and develop their culture and to retain their identity.

Convention on the The Convention aims to improve integration of foreign residents into the Participation of life of the community. It applies to all persons who are not nationals of Foreigners in Public the Party and who are lawfully resident on its territory. Life at Local Level

European Convention The object of the rules embodied in this Convention is to bring the legal on the Legal Status of status of children born out of wedlock into line with that of children born Children born out of in wedlock and thereby to contribute to the harmonisation of the relevant Wedlock legislation of Parties. However, as not all Parties are able to achieve this objective immediately, the Convention provides for a system of

213 †323 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

reservations enabling Parties to work towards it gradually. Reservations may be made in respect of a maximum of three of the nine articles entailing an obligation, but such reservations are valid for a maximum of five years, after which they have to be reconsidered. The Convention's main provisions relate to paternal and maternal affiliation, recognition, denial and contesting of paternity, the assignment of parental responsibilities and the children's succession rights.

Convention on Human The Convention is designed to preserve human dignity, rights and Rights and freedoms, through a series of principles and prohibitions against the Biomedicine misuse of biological and medical advances. The Convention's starting point is that the interests of human beings must come before the interests of science or society. It lays down a series of principles and prohibitions concerning bioethics, medical research, consent, rights to private life and information, organ transplantation, public debate etc. It bans all forms of discrimination based on the grounds of a person's genetic make-up and allows the carrying out of predictive genetic tests only for medical purposes. The treaty allows genetic engineering only for preventive, diagnostic or therapeutic reasons and only where it does not aim to change the genetic make-up of a person's descendants. It prohibits the use of techniques of medically assisted procreation to help choose the sex of a child, except where it would avoid a serious hereditary condition. The Convention sets out rules related to medical research by including detailed and precise conditions, especially for people who cannot give their consent. It prohibits the creation of human embryos for research purposes and requires an adequate protection of embryos where countries allow in-vitro research. The Convention states the principle according to which a person has to give the necessary consent for treatment expressly, in advance, except in emergencies, and that such consent may be freely withdrawn at any time. The treatment of persons unable to give their consent, such as children and people with mental illnesses, may be carried out only if it could produce real and direct benefit to his or her health, The Convention stipulates that all patients have a right to be informed about their health, including the results of predictive genetic tests. The Convention recognises also the patient's right not to know. The Convention prohibits the removal of organs and other tissues which cannot be regenerated from people not able to give consent. The only exception is, under certain conditions, for regenerative tissue (especially bone marrow) between siblings. The Convention recognises the importance of promoting a public debate and consultation on these questions. The only restrictions are those prescribed by law and which are necessary in a democratic society in the interest of public safety, for the prevention of crime, for the protection of public health or for the protection of the rights and freedoms of others. Additional Protocols are foreseen to clarify, strengthen and supplement the overall Convention. The Steering Committee on Bioethics (CDBI), or any other committee designated by the Committee of Ministers or the Parties may request the European Court of Human Rights to give advisory opinions on legal questions concerning the interpretation of the Convention.

Convention on Human The Protocol to the Council of Europe's Convention on Human Rights Rights and and Bio-Medicine prohibits "any intervention seeking to create a human Biomedicine – being genetically identical to another human being, whether living or Additional Protocol dead". It rules out any exception to this ban , even in the case of a on the prohibition of completely sterile couple. cloning human beings Only States which have signed the actual Convention can also sign the

214 †324 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Protocol. It stipulates that States must provide in their legislation for penalties for offences, such as prohibiting researchers and practitioners from practising, revoking licences for laboratories or clinics, and criminal penalties. Along with the Convention, certain of whose provisions it supplements, the Protocol enshrines important principles which provide the ethical basis for further biological and medical developments, both now and in the future.

European Convention This Convention is concerned with the principal aspects of the legal on the Legal Status of situation of migrant workers, in particular recruitment, medical Migrant Workers examinations, occupational tests, travel, residence permits, work permits, the reuniting of families, working conditions, the transfer of savings and social security, social and medical assistance, the expiry of work contracts, dismissal and re-employment. A Consultative Committee was instituted to examine Parties' reports on the application of the Convention. On the basis of these documents, the Consultative Committee draws up reports for the attention of the Committee of Ministers.

SUPPLEMENTARY SUBMISSION FROM THE SCOTTISH EXECUTIVE

During my evidence to the Committee at its meeting on 18 January in connection with consideration of the Scottish Commissioner for Human Rights Bill, the Committee asked for further information on a number of issues.

Some of those issues were dealt with in Brian Peddie’s letter to you of 25 January. I await advice to enable me to respond to the request for clarification on whether the Scottish Commissioner would be able to intervene in proceedings arising from a reference to the court by the Lord Advocate arising from criminal proceedings, and I will reply to you on this as soon as possible. In the meantime I am writing now to provide a response on the remaining issues, as set out below.

Raising of legal actions in human rights cases

The question was raised of whether the Scottish Parliament could confer a power on the Scottish Commissioner to raise legal actions in his or her own name in connection with alleged breaches of human rights. In my letter of 16 January I said that our advice is that the Scottish Parliament could not confer a power on the Scottish Commissioner to raise legal actions in his or her own name, since that would go against section 7(1) of the Human Rights Act 1998 (which provides that an action relating to human rights is only competent if the litigant is a victim or potential victim). Paragraph 1(2)(f) of Schedule 4 to the Scotland Act 1998 precludes the Scottish Parliament from amending the Human Rights Act. Also, section 100(1) of the Scotland Act 1998 states that the Scotland Act does not enable a person to bring an action in court and rely on a breach of Convention rights unless the person is a victim or potential victim of the breach. So it is thought that seeking to disapply the victim test in the Human Rights Act by conferring a power on the Commissioner to raise legal actions arising from alleged breaches of human rights in his or her own name would almost certainly be outwith devolved competence. It therefore remains the Executive’s view that any such change to the Commissioner’s powers would have to be effected by legislation at Westminster.

During the Committee meeting on 18 January it was suggested that UK Government officials had indicated to Committee members, during their informal meeting in London on 10 January, that in their view the conferring of such a power on the Commissioner would be within devolved competence. Executive officials have discussed this with their counterparts in the Department for Constitutional Affairs, who have advised that they did not in fact express such a view and that they regard this as a matter for the Executive rather than the UK Government.

215 †325 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

It was also suggested at the Committee meeting on 18 January that it might be possible to confer a power on the Commissioner to raise legal actions in human rights cases through subordinate legislation at Westminster made under section 104 of the Scotland Act. That section provides that:

“Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament…”

However, having considered the matter further since the meeting the Executive’s view remains as explained during the meeting, namely that we are not confident that section 104 could be used in this way. In our view it is questionable whether the conferring of such a power could be said to be “necessary or expedient”, since the Commissioner would be able to exercise his or her functions in terms of the Bill without having such a power.

Finally in relation to the raising of legal actions in human rights cases, the question was raised of whether the consent of the Scottish Commissioner would be required before the new Commissioner for Equality and Human Rights (CEHR), to be created by the Equality Bill presently being considered at Westminster, could raise a legal action on human rights grounds in relation to a devolved matter.

Clause 7 of the Equality Bill provides that the CEHR shall not take human rights action in relation to a matter if the Scottish Parliament has legislative competence to enable a person to take action of that kind in relation to that matter, except with the consent of a person established by an Act of the Scottish Parliament whose principal duties relate to human rights and are similar to the CEHR’s duties in respect of human rights (i.e., the Scottish Commissioner).

On whether that requirement for SCHR consent would apply to the raising of legal actions by the CEHR in human rights cases, I would refer the Committee to what was said on the subject during consideration of the Equality Bill in the House of Commons. On 29 November 2005, the Minister for Women and Equality (Meg Munn) said that clause 7 meant that “the Commission for Equality and Human Rights will not be able to institute or intervene in legal proceedings that relate to a matter that falls within the devolved competence of the Scottish Parliament without the proposed Scottish commissioner’s consent” [Commons Hansard 29 November 2005, Standing Committee A, col. 43].

Ability of the Commission for Equality and Human Rights to intervene in criminal cases

Section 11 of the Bill would confer on the Commissioner a power to intervene in proceedings before a court. However, section 11 expressly limits that power to civil proceedings. The Commissioner would therefore have no power to intervene in criminal proceedings. During the Committee meeting on 18 January the question was raised of whether the CEHR would have such a power.

The Equality Bill provides that the CEHR shall have capacity to intervene in legal proceedings if it appears to the CEHR that the proceedings are relevant to a matter in connection with which the CEHR has a function. However, the Bill also provides that this is subject to any limitation or restriction imposed by virtue of an enactment or in accordance with the practice of a court. Our understanding is that the practice of the criminal courts in England and Wales does not allow intervention by third parties, the only exception being the House of Lords (which can hear appeals in criminal cases). Therefore, the CEHR will not be able to intervene in criminal proceedings except for appeal proceedings in the House of Lords.

Access to places of detention: existing arrangements under international instruments

Section 8 of the Bill would give the Scottish Commissioner for Human Rights a legal power to gain entry to places of detention for the purposes of an inquiry. In this connection the Committee asked about the existing arrangements for access to places for detention in

216 †326 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D connection with monitoring of the UK’s compliance with international instruments. There are 2 such instruments that are relevant in this context: the Optional Protocol to the UN Convention Against Torture (OPCAT) and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT). These are dealt with separately below.

Optional Protocol to the UN Convention Against Torture The general principles of the Protocol are: x to establish a system of regular visits by independent international and national bodies to places of detention; x to establish a Subcommittee on Prevention of Torture; x to require States who are Parties to the Protocol to set up, designate or maintain domestic visiting bodies for the prevention of torture (known as “national preventive mechanisms”); and x to allow visits by the Subcommittee and national preventive mechanisms to places of detention.

The Protocol also sets out the Subcommittee’s mandate, which, broadly, is (a) to visit places of detention and make recommendations to State Parties concerning the protection of people deprived of their liberty and (b) to assist national preventive mechanisms in fulfilling their functions.

State Parties are to grant the Subcommittee: x powers of access to all information concerning people deprived of their liberty; x power of access to places of detention; x the opportunity to conduct private interviews; x the liberty to choose the places they want to visit and the people they want to speak to; and x the right to communicate with the Subcommittee.

State Parties may object to visits only if there are “compelling grounds of national defence, public safety, natural disaster or serious disorder in the places to be visited…” The Subcommittee is to communicate its recommendations to State Parties and national preventive mechanisms, and may publish its report with any comments of the State Party when requested to do so by that State Party.

Part IV of the Protocol contains various provisions in relation to national preventive mechanisms (NPMs). Among other points, it states that NPMs shall have powers of access, entry and interview similar to those of the Subcommittee.

The Protocol does not specify any minimum period of notice required to be given by either the Subcommittee or a NPM before visiting a place of detention. However, nor does it explicitly require States to grant access without notice. The Protocol appears to envisage that in practice some period of notice of visits by the Subcommittee will be given, since it provides that “After consultations, the Subcommittee on Prevention shall notify the States Parties of its programme in order that they may, without delay, make the necessary practical arrangements for the visits to be conducted”. This is similar to the arrangements that already exist under the ECPT (see below). The Protocol contains no such provision as regards NPMs, where it simply states that “States Parties to the present Protocol undertake to grant them … access to all places of detention and their installations and facilities”.

It is important to note that the Protocol is not yet in force, and so the mechanism for monitoring compliance that it sets out is not yet in place. The Protocol will come into force when 20 States have ratified or acceded to it. So far 16 States, including the UK, have done so.

Even after it comes into force the Protocol will not form part of domestic law and so its provisions, including those on access to places of detention, will not be enforceable in the Scottish courts.

217 †327 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment The Convention establishes a Committee to “examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment.”

The Convention requires States who are Parties to it to provide to the Committee: x access to their territory and the right to travel without restriction; x full information on the places where persons deprived of their liberty are being held; x unlimited access to any place where persons are deprived of their liberty, including the right to move inside such places without restriction; x other information available to the State which is necessary for the Committee to carry out its task; and x the ability to interview in private persons deprived of their liberty or communicate freely with any person whom it believes can supply relevant information.

Committee delegations visit Contracting States periodically but may organise additional "ad hoc" visits if necessary. The Committee must notify the State concerned but need not specify the period between notification and the actual visit, which, in exceptional circumstances, may be carried out immediately after notification. Governments' objections to the time or place of a visit can only be justified on grounds of national defence, public safety, serious disorder, the medical condition of a person or that an urgent interrogation relating to a serious crime is in progress. In such cases the state must immediately take steps to enable the Committee to visit as soon as possible. After each visit, the Committee is required to publish a report of its observations and recommendations. Reports are to be published alongside any comments of the State.

The Committee last visited Scotland in 2003. On that occasion, in accordance with the Committee’s normal practice, the Committee gave notice before its arrival in the UK of the particular places of detention that it intended to visit.

As with OPCAT, the ECPT is not part of domestic law and its provisions are therefore not directly enforceable in the Scottish courts.

Ability of the SCHR to intervene in proceedings at the European Court of Human Rights

Third parties can intervene in proceedings before the European Court of Human Rights at Strasbourg. Article 36(2) of the European Convention on Human Rights provides that once notice of an application to the Court has been given to the State against whom proceedings are being taken, the President of the Court may, in the interests of the proper administration of justice invite, or grant leave to, any member State which is not a party to the proceedings, or any person concerned who is not the applicant, to submit written comments or, in exceptional cases, to take part in a hearing. This provision also appears in the Court’s Rules (Rule 44(2)).

The Scottish Commissioner for Human Rights would not be able to rely on section 11(1) of the Bill to allow him or her to intervene in proceedings before the Strasbourg court, since under section 11(9) of the Bill section 11(1) would only apply to proceedings in the Court of Session, sheriff court and Land Court. However, section 11(8) provides that the express power to intervene contained in section 11(1) is without prejudice to the Commissioner’s capacity to intervene in any court or tribunal under an enactment or the practice of that court or tribunal. Since the practice of the European Court of Human Rights allows such intervention it is thought that this would enable the Commissioner to intervene in proceedings at Strasbourg, subject of course to the Court’s agreement.

I hope that this information is helpful.

Robert E Brown

218 †328 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Other Written Evidence

SUBMISSION FROM THE NATIONAL INSTITUTIONS UNIT OF THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR)

The following are the comments of the National Institutions Unit of the Office of the United Nations High Commissioner for Human Rights (OHCHR) concerning the draft legislation regarding the Scottish Commissioner for Human Rights Bill (SP Bill 48 – Session 2, 2005). They are provided for the benefit of the Government of Scotland in its realization of its goal to establish a national human rights institution which is in compliance with the Principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles) approved unanimously by the United Nations General Assembly in 1993 (annexed to Resolution 48/134 of 20 December 1993).

OHCHR notes that the drafting of this bill was part of a broader consultation process and therefore commends the earlier discussion papers and hearings. Such a process can assist in ensuring a sense of public ownership over the institution.

In summary the six key criteria in the Paris Principles are:

x independence guaranteed by statute or constitution x autonomy from government x pluralism, including in membership x a broad mandate based on universal human rights standards x adequate powers of investigation x adequate resources

In addition to the proposed law, the following background papers have been made available to the Office to assist in the review:

x the Explanatory Notes to the Bill x a Memorandum on Delegated Powers with reference to the Bill x the Policy Memorandum with reference to the Bill x the Spice briefing of December 2005 on the Bill

The background documents make it clear that the Commissioner is intended to be a national human rights institution that conforms to the Paris Principles. In addition, some of the background documents take account of the situation and ‘best practices’ that have been noted with regard to human rights commissions in existence elsewhere.

This review examines the proposed law, including the attached Schedules, from these perspectives: the degree to which the provisions satisfy the letter and spirit of the Paris Principles as well as the degree to which they respond positively to the experiences and ‘best practices’ of other human rights commissions.

While each article was reviewed in this way, for clarity the review deals only with articles which are, or contain, elements that may not fully comply with the Paris Principles or not reflect best practices. In each instance where this is the case, the review highlights the issue contained in a given provision that may be problematic. The review then, where this can be determined from the background documents, sets out the apparent justification for the provision. Finally, the review provides comments on the provision.

It is important that the institution is enshrined within the Constitution where possible. Such a provision is critical to ensure the necessary independence of the institution and provide the general parameters concerning its establishment. It may be brief and concise as the powers and functions of the institution itself will be incorporated in the enabling legislation to be adopted.

219 †329 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Article 1

This article establishes the Commissioner and sets out the general manner in which the Commissioner and Deputies are to be nominated. It provides that further provisions relating to the Commissioner and Deputies are to be set out in Schedule 1 of the Bill. Of interest here is the proposal that Commissioners and Deputies be appointed “by Her Majesty on the nomination of the Scottish Parliament.”

The background papers stress the need for independence of the Commissioner and point out the importance attached to the nomination procedures in ensuring this independence. The Paris Principles require that the process of nomination be set out in an official document and be such as to encourage plurality.

The article does ensure that the nomination of members involves Parliament, which is one way to ensure independence and representivity, since Parliament is meant to be independent from the Executive and be representative itself. As will be discussed at greater length when examining Schedule 1, it would have been preferable to set out the criteria that would be used in the selection process. Also the involvement of civil society in the process could enhance both the independence of the Commissioner and the transparency of the process. This might be done, for example, by adopting procedures to have a Parliamentary Committee invite nominations for the positions.

Article 2

The general obligation imposed by the article is “to promote awareness and understanding of, and respect for, human rights.” It goes on, in sub-paragraph (1)(b), to suggest that in particular this should relate to rights set out in the European Convention on Human Rights (ECHR). Subparagraph (2)(b) defines human rights to mean those rights set out in the ECHR, as well as other international conventions ratified by the United Kingdom. Finally, paragraph (3) indicates that the Commission’s priority should be towards rights set out in the ECHR. This review will address two issues: the preference given European Convention (EC) rights and the limitation for action to other international treaty rights that have been ratified by the United Kingdom.

The justification for the preference for EC rights seems to be that those rights are enforceable in Scottish courts.

The justification for limiting action with respect to other international treaty rights to rights contained in treaties that have been ratified stems from the fact that Scottish officials are bound to uphold these rights. With regard to the EC rights preference

The Paris Principles require that an institution’s jurisdiction be as broad as possible. There are variations between institutions in the mandate they hold, nonetheless, the ‘best practice’ is that institutions should be mandated to consider all rights, which are, after all, indivisible, interdependent and interconnected. Moreover, the article refers to a responsibility to promote rights and the fact that some rights are directly enforceable in Scottish courts seems irrelevant to that responsibility. The article therefore seems to diminish the importance of some rights, and the potential scope of action by the Commissioner, for no particular reason.

With regard to the limitation to treaty rights that have been ratified by the United Kingdom

While it is not uncommon for human rights institutions to be restricted to protect rights that have been ratified by their State, the arguments presented above with respect to the responsibility to promote rights applies here as well. In fact, the Paris Principles require institutions to encourage States to adhere to international human rights treaties.

220 †330 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Article 3

This article defines parameters that the Commissioner may monitor (existing) law, policy and practice. Two issues will be discussed: the lack of a formal role for the Commissioner with regard to proposed law, policy and practice and the absence of mention of the responsibility of the Commissioner to promote harmonisation of law, policy and practice with international human rights obligations.

Apparently, the suggestion that the Commissioner have a role to vet proposed law, policy or practice was rejected since this might lead to suggestions that the Commissioner was not independent. Further, it was considered unnecessary in that the Commissioner could comment (at least as regards proposed law) at the time a draft bill was introduced and/or when it was being considered in Committee.

There seems to be no formal justification for the absence of reference related to the responsibility of the Commissioner to promote harmonisation, although it may be deduced that the authorities believe that the Commissioner’s general right to comment might allow it to perform this function.

With respect to the ability to comment on proposals

The ability of the Commissioner to comment on proposed law, policy and practice is important if for no other reason than timely intervention is usually more effective than intervention after the Executive has already formulated an opinion. It is difficult to see how the Commissioner might lose or be perceived to lose, independence if she or he has a formal or informal role in commenting on proposals, unless she or he was then restricted from offering further comment, which one would suppose not to be the case. For this reason, it would be considered most appropriate for the law to recognise the responsibility of the Commissioner to monitor and comment on proposed courses of action.

With regard to harmonisation of legislation with international norms

The Paris Principles indicates that institutions shall have the responsibility to “promote and ensure the harmonisation of national legislation, regulations and practice with the international human rights instruments to which the State is a party.” It may be that nothing in the law prevents the Commissioner from playing this role; however, it would be preferable to have the responsibility set out explicitly.

Article 4

This article sets out the general responsibility of the Commissioner to provide information, guidance and education. Paragraph (2) of the article authorises the Commissioner to charge “reasonable fees” for its efforts in information, guidance and education” and paragraph (3) provides that these fees can form part of the operating budget of the Commissioner.

The rationale for authorising ‘user-fees’ is apparently that the Commission may undertake work that is of particular benefit to some enterprises – for example training provided to those in charge of places of detention - and that those enterprises should bear the cost of it. The fact that the fees may remain with the Commissioner recognises that the work is done by that organisation and removes a disincentive against cost-recovery that might otherwise exist.

The concerns that arise relate to two issues: charging fees should not limit access to the Commission; moving to cost-recovery should not be required because the institution has insufficient funds. The first concern might be alleviated, at least in part, by including in the relevant paragraph a clause that makes it clear that the Commissioner may not charge fees when this has the effect of denying the general public reasonable access to all of its services.

221 †331 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Article 5

This article sets out the authority of the Commissioner to conduct inquiries and establishes the general process that is to be followed in this activity. Two issues will be examined: the limitation of object-matter jurisdiction of inquiries to public authorities and the obligation to establish and publish a ‘summary of the procedure to be followed’ and to ‘give notice’ to each relevant authority that might be asked to participate.

There does not seem to be any formal rationale given for limiting the object-matter jurisdiction of inquiries to public authorities, although it may relate to the general sense that human rights are matters between the State and the citizen.

Similarly, the background documents do not seem to indicate why the Commissioner is obliged to develop and publish a summary procedure or to give notice, although it may have to do with the notion of procedural fairness.

With regard to the object-matter jurisdiction of inquiries

A number of institutions have jurisdictions that extend into the private sector, either generally or with respect to functions that have a quasi-public nature, such as telephones, utilities, etc. A similar extension of jurisdiction into this area by the Scottish authorities would enhance the protections offered by the Commissioner, assuming that this is relevant in the Scottish experience.

With regard to the obligation to develop a summary procedure and to give notice

It is understandable that the Commissioner have general parameters for the conduct of inquiries. It is also understandable that authorities that might be asked to provide testimony, information or documents should know that they this may happen. Nonetheless, it is also true that information might come up within an inquiry that would require the Commissioner to re- examine and revise a particular procedure or cause her or him to want to question authorities, or obtain documents or information from them, who were not originally identified as being relevant. There does not appear to be any process that would allow the Commissioner to adapt to this possible eventuality. A formula should be found that ensures that the inquiry is sufficiently focussed while allowing the Commissioner to act on information that might arise in the course of an inquiry. In this regard it should be noted that the Paris Principles state that an institution shall “hear any person and obtain any information and any documents necessary for assessing situations…”

Article 6

This article sets restrictions on the scope of an inquiry. It disallows the Commissioner from examining particular authorities, except when that authority “is the only public authority with functions in relation to the subject matter of the inquiry” or the issue involves issues relevant to torture or other possibilities that might be determined by order in council. More generally, the article disallows the Commissioner from inquiring into an individual complaint.

There does not seem to be any formal justification for limiting an inquiry, for the most part, to general, service-wide matters beyond the general decision to deal with systemic issues rather than individual ones. One suspects, as well, that there is a belief that general policies and practices are service- wide and therefore enquiries on matters of systemic issues must also be service-wide. The exception to this limitation for issues relevant to torture seems to be justified, at least in part, by the fact the European Committee on Torture may conduct enquiries and also would take into consideration proposals under the Optional Protocol to the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Again, one suspects that there is an expectation that matters relating to torture will be aberrations and therefore an individual focus may be more justifiable. In addition, again one suspects, that the notion of

222 †332 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D torture is so abhorrent that a focussed inquiry, perhaps even based on a single complaint, might be justified.

With reference to dealing with service-wide issues

Even accepting the rationale for dealing with systemic issues only, and not individual cases, it remains that a systemic issue may relate to a single authority and not be service-wide. A particular authority may, despite general rules and policies, misinterpret, misapply or otherwise act in contradiction to those rules. Obliging the Commission, in such instances, to carry out a broader inquiry would be unnecessary and costly, and could potentially weaken the Commissioner’s resolve to conduct inquiries.

The exception provided with regard to issues relating to torture recognises that aberrations can exist. While one can appreciate the need to develop processes that would facilitate the examinations of such matters, the same would be true for other forms of human rights violations. The proposed law implicitly recognises this by allowing for the possibility of other exceptions as identified through Order in Council. The better option might be to allow the Commissioner to have the procedural flexibility to target inquiries where this is warranted by the information at hand, even for matters that are not directly related to torture.

With reference to the limitation to dealing with individual complaints

It is certainly true that many human rights institutions have difficultly dealing with their individual complaint caseload. This may relate, at times, to inefficiency. Nonetheless, the fact that individual cases are so numerous is indicative of a need. Rather than suggesting that the flood of cases made it difficult for such Commissions to carry out their obligations, it might be more accurate to say that the Commissions did not have the necessary resources to respond to that need and carry out other work. It does not necessarily follow, then, that allowing an institution to inquire into individual matters results in diminished effectiveness. To exclude the possibility of inquiring into individual complaints because they may interrupt the operations of the proposed Commissioner is to determine in advance that that Commissioner will have insufficient resources to deal with them.

It is also true that individual complaints can relate to systemic issues. A particular case of refusal to grant maternity leave, as an example, can result in a systemic resolution – the modification of the policy.

Finally, the Paris Principles state that an institution shall “freely consider any question falling within its competence … on the proposal … of any petitioner.” (See sub-paragraph (a) under ‘Methods of Operation’.) They also provide that an institution shall have the responsibility to provide advice and recommendations on “any situation of violation of human rights which it decides to take up”. (See paragraph 3(a)(ii) under ‘Competence and responsibilities’.) Both suggest that institutions should have, at a minimum, the discretion to look into individual matters.

Article 7

The article sets out the authorities of the Commissioner with regard to obtaining evidence from individuals during an inquiry. In principle, the Commissioner can seek oral evidence, documents and information from any Scottish public authority or employee thereof. Such individuals are obliged to comply except they would be allowed to refuse a similar request made by the courts. It is noted that the authorities do not include the authority to enter into premises (except as modified in article 8, which is discussed next, with reference to places of detention.) It is also noted that the Commissioner has no authority to seek evidence from persons other that authorities or their employees.

The rationale for excluding the authority to enter premises is apparently that, given the general authority to require the production of documents, a power to enter into premises would be unnecessary.

223 †333 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

There does not seem to be any discussion of the exclusion of evidence from persons other than employees of an authority.

With regard to the right to enter premises

The authority to freely enter any premises for purposes of conducting an investigation is an important power of human rights institutions. To suggest that the authority to require the production of any document renders this power moot is to suggest that no public authority will refuse to surrender documents that might directly or indirectly incriminate it. Unfortunately, the experience of many human rights institutions has proved this supposition false. It may also be that the ability to enter premises might provide some valuable information pertinent to an inquiry, for example, one concerned with the rights of persons with disabilities. This issue might be reconsidered.

With regard to evidence from non-employees

It may be that the subject-matter of an inquiry concerns those meant to receive service from an authority. It is difficult to see how as inquiry could be conducted without reference to the views and opinions of those individuals, especially if they represent representatives of disadvantaged groups.

Article 8

This article gives the Commissioner the authority to enter into any place of detention for purposes of an inquiry. This Article is supplemented by further clarifications set out in Schedule 2.

The background documents recognise the importance of physical inspection of such places of detention and notes, inter alia, that the proposed OPCAT foresees the possibility of monitoring agencies and suggests that the Commissioner could fulfil this function.

While the article is in itself fine, some difficulties are noted with regard to Schedule 2, which amplify this article.

Article 9 and 10

We have no comments.

Article 11

This article provides the Commissioner with the authority to seek or be asked to intervene in civil, but not criminal, cases involving matters within its ambit.

The rationale for authorising the Commissioner to appear before the civil courts stems from a recognition that the Office may have something important to contribute to human rights cases and that some other similar institutions have used the authority to advance human rights issues. Apparently, there is no current authority for anyone, other than the prosecutor and defence, to intervene in criminal matters and this would serve to prevent the Commissioner from having the authority to seek to do so.

While noting the particularities that might be attached to the Scottish situation, it should be noted that several jurisdictions allow amicus curiae interventions by human rights institutions, including in criminal cases, and this has been shown to be effective in advancing human rights principles. To the extent that this possibility is not available in Scotland, it would be recommended that the exclusion be reviewed with a view to changing it.

Article 12

The article sets out the requirement for the Commissioner to provide an Annual Report to Parliament. Paragraph (3) indicates that Parliament might direct the Commissioner “as to the

224 †334 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D form and content of the report.”

The background documents describe the balance between independence and accountability to Parliament in general terms although they do not seem to deal directly within this provision. Parliament does have the sole authority to disburse funds, however, so it is normal that those entities that benefit from the funds should be accountable for them. One purpose of the Annual Report is to do just that.

Notwithstanding the justification outlined above, the article is too broad in its wording as it suggests that Parliament could dictate what the Commissioner could and could not report on. Moreover, article 2 (1) of Schedule 1 provides explicitly that the Commissioner “is not to be subject to the direction … of the Parliament corporation.” The Paris Principles do not refer directly to this issue, but clearly set out the need for independence of a Commission especially with regard to reporting. It might be preferable to find wording that respects the need for the Commissioner to be accountable to Parliament, especially as regards its use of funds, without seeming to give Parliament a directive role on what the report may contain.

Article 13

Under 13(1) it is noted that the “Commissioner must arrange for the publication of reports laid by it before Parliament.” If this articles remains as is then it will be incumbent upon Parliament to ensure that the Commissioner is provided with sufficient funds to ensure such publication and that at minimum the Annual Report be made available as widely as possible. Another approach might be for Parliament to publish the Annual Report upon receipt from the Commissioner.

Articles 14 to 19

We have no comments.

Schedule 1 (introduced by Article 1(6))

Article 1

It would appear that article 1(b) of Schedule 1 may be tempered by article 15 of the Bill which is appropriate. It is also understood that such privilege shall continue to be accorded even after the Commissioner ceases employment with the institution. It is also normal that such privilege would be extended to the Deputy Commissioners.

However to ensure the independence of the institution there should also be overall protection of the institution. The premises of the institution should be inviolable. The archives, files documents, communications, property, funds and assets of the institution, wherever located and by whomsoever held, should be inviolable and immune from search, seizure, requisition, confiscation, expropriation or any other form of interference, whether by executive, administrative, judicial or legislative action.

Article 2

Concerning independence please refer to the earlier comments in relation to article 12(3) of the Bill and 11(3) of Schedule 1. There should be no limitation to the independence of the institution in relation to the actual content of the annual report as noted in our comments under the said article. Hence we would suggest that reference to section 12(3) this exception should be struck from this article.

Article 3

This article sets out conditions that might render an individual disqualified from holding office as Commissioner or Deputy.

225 †335 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

The background documents do not refer to this issue, although clearly some employment may be considered incompatible with independence.

The article is not matched with another that sets out the criteria that are to be used in the selection of a Commissioner and Deputy, such as recognised competence in human rights and a personal history that demonstrates integrity and independence. This issue would be best made explicit.

Article 4

Paragraph (2) of the article sets out the process for the dismissal of a member: a Commissioner or Deputy can be removed by a majority vote of Parliament.

As with the selection process, the involvement of Parliament directly in the dismissal process helps ensure the independence of the Commissioner.

The dismissal process is linked to a human rights institution’s independence: the process used should be set out in legislation and be such as to ensure that there can be no political interference or retaliation. The absence in the Schedule of any reasons justifying dismissal leaves the possibility open that Parliament could act unilaterally and without cause. At a minimum, the Schedule should set out the justifications that might be used to dismiss a member, and these must be sufficiently serious so as to warrant the action.

Articles 5 to 10

We have no comments.

Article 11

The Chief Executive of a national institution is a key figure. In this regard it is important that the terms of reference and terms of office for that individual be clearly agreed to by the national institution. Article 11(3) should not be interpreted as placing any undue restrictions in the drafting of the terms and conditions of the Chief Executive by the Commissioner with a view to limiting the independence of the institution.

Article 12

We have no comment.

Article 13

Please refer to comments concerning articles 4(3) and 13(1).

Article 13 of Schedule 1 provides that Parliament will pay the salaries of the Commissioner and Deputies, as well as the expenses that these officials may incur in carrying out their duties. Parliament pays the salaries and expenses of the Commissioner and Deputy to reinforce the notion that these individuals are servants of Parliament and therefore independent. The background documents indicate that Parliament will also determine the operating budget for the Commissioner generally, including salaries for staff, and funds for offices, supplies and operating expenses. This is not referred to directly in the law, however.

The Paris Principles require that national institutions receive adequate funding, sufficient for the “smooth conduct of its activities”. Without wishing to infringe on the rights and duties of Parliament with regard to fiscal management, it might be prudent to include a clause in the Schedule to the effect that Parliament will ensure that the budget provided the Commissioner will be sufficient for it to carry out its responsibilities. It is widely recognised that ensuring that a national institution is adequately resourced is a state responsibility.

226 †336 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Schedule 2 (introduced by Article 7(5))

Article 1

We have no comment.

Article 2

This article provides a process by which an individual required by the Commissioner to give evidence or provide documents or information to an inquiry can seek to have the order cancelled. It provides that the sheriff may do so if satisfied that the requirement is unnecessary, undesirable for reasons of national security or otherwise unreasonable.

The documentation available does not provide a rationale for this possibility, although one can suppose that it is meant to curb an overzealous inquiry.

Without fully understanding the process involved in a sheriff’s decision or the legal context in which it is taken, it is difficult to grasp the potential implication of this provision. It could be read as taking away from the Commission a fundamental power of inquiry – the power to determine what information and documentation is pertinent to the inquiry. Moreover, it plants the seeds of delay and legal manoeuvring that might render the process at best inefficient and at worse meaningless. As a general principle it might be best to allow the possibility for an individual to present her or his case to the Commissioner directly, and have the decision taken at that level. In the event that the individual’s request is denied, she or he might comply under protest and challenge the request after the fact, at least as regards matters that are not related to national security.

The issue of national security is more complex. Given the removal of the determination from her or his mandate, there apparently is a concern that a Commissioner will not be sufficiently sensitive to or knowledgeable about these issues. This is at least debatable, if the individual selected is truly capable and independent. Moreover, as has been shown often, public authorities can over-estimate the need for security: this is why many countries rely on an impartial and independent body to make rulings in these types of matters. At a minimum, if the authority remains in the schedule to have the sheriff make the determination, some judicial review process should be in place to challenge that ruling where, in the Commissioner’s view, it is not sustainable.

Articles 3, 4 and 5

We have no comments.

Schedule 3 (introduced by Article 8 (5))

Article 1

This article requires the Commissioner to provide advance notice to a place of detention of an intent to inspect its premises.

The background document does not seem to provide a rationale for the requirement, although one might suppose that it relates to procedural fairness.

It is considered essential that human rights institutions with the authority to inspect places of detention have the power to do so without prior notification. Most human rights institutions with the explicit authority to enter places of detention have this power. Not having such a power can lead to ineffective visits and a potential lack of revealing human rights violations.

Article 2

We have no comment.

227 †337 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

Article 3

This article is similar to article 2 of schedule 2 and the comments made there apply here as well.

Article 4

This article provides for penalties in the event that an individual intentionally obstructs the Commissioner in the course of an inquiry.

The background documents available do not provide a justification for this provision, but it is common for human rights institutions with inquiry powers to have this authority.

Most human rights institutions have the authority to seek penalties not only for obstruction but also in situations where a witness faces retaliation for her or his testimony. This might be contemplated in the schedule. In addition, to the extent that article 3 of the schedule is maintained, this article might make it clear that a request for cancellation which is found to be devoid of merit might constitute obstruction so as to put a check on unwarranted use of the article for procedural reasons.

National Institutions Unit of the Office of the United Nations High Commissioner for Human Rights (OHCHR) January 2006

SUBMISSION FROM THE NORTHERN IRELAND HUMAN RIGHTS COMMISSION

The Northern Ireland Human Rights Commission was established in March 1999 as a result of the Belfast (Good Friday) Peace Agreement and the Northern Ireland Act 1998. As human rights and equality were considered central to the recent conflict in Northern Ireland, so the establishment of a Human Rights Commission and Equality Commission were integral to post-Peace Agreement arrangements. The powers and duties of the Northern Ireland Human Rights Commission were debated at length with a review clause inserted in the legislation to satisfy outstanding concerns.

That review clause required the Commission to report on its powers and effectiveness within two years of its establishment. Such a review was duly prepared and submitted to government in March 2001. Just this month, November 2005, the Minister of State for Northern Ireland Mr David Hanson, released a consultation document outlining the government’s response to that review. The core issues at stake relate to the Commission’s investigation powers and right of access to places of detention. If all goes plan, and the Commission does secure the right to compel the production of documents and evidence and the right of access to places of detention, amended legislation might be expected in the 2007 timetable, eight years after the Commission was established.

This article on the establishment of a Scottish Human Rights Commission is prefaced by the account of the Northern Ireland Human Rights Commission’s review of powers, simply to highlight the difficulties experienced in amending founding legislation and the consequent importance of getting it right in the first instance. Consideration of the establishment of a Human Rights Commission in Scotland has been ongoing since March 2000 with public consultations in 2001 and 2003. Whilst this appears to be a long gestation period, the outcome may well be an effective Human Rights Commission whose standing and purpose is well understood by the legislature, the courts, public officials and the people who most require its protection. That would be a considerable achievement in itself.

The Northern Ireland Human Rights Commission could envy several aspects of the proposed Scottish powers. Accountability to Parliament directly rather than through the executive and a sponsoring government department; the power to compel the production of evidence and documents even to the point of having the power to administer an oath to witnesses; the

228 †338 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D ability to provide education and training and to charge reasonable fees for doing so; the cover of either absolute or qualified privilege for all reports of inquiries, preventing defamation actions and, to have the potential to appoint a serving Commissioner and deputy Commissioners for up to ten years, a period providing reasonable opportunity to develop knowledge, standing and to effect change.

All of these have no doubt been hard won gains. It is however worth pushing a bit further at this stage to ensure that the previous five years’ work results in a fully effective Human Rights Commission for Scotland. There seem to be a few core omissions and other areas of detail which would benefit from clarity.

The Northern Ireland Human Rights Commission, NIHRC, receives over 600 legal inquiries each year. Of these perhaps 50-60 become formal applications for assistance and only some 10% of those would receive support from the Commission, in addition to several interventions. It is however, the regular contact with individuals’ human rights concerns which helps inform the Commission and its priorities for action. Many of these concerns cannot be resolved by us: they are referred to other bodies or perhaps informal mediation is undertaken. Sometimes, although the issue is manifestly unfair, it is not illegal and no further redress can be pursued. Without the power to support individual cases the NIHRC would be the poorer in terms of an ongoing relationship with the courts, legal practitioners and advice services.

Managing a casework budget is little short of a nightmare. The Scottish Commission has an anticipated budget of £1 million per annum. The NIHRC started out with £750,000 pa which has increased to £1.35 million pa. Of that, currently some £100,000 is allocated to casework. As we are all aware however, one major case can account for that annual budget by itself. Working with the Audit Office the NIHRC has come up with a method of accounting for commitments made to cases but budgeting is extremely difficult. What is important to remember is that very few cases which highlight core human rights issues can be identified. And when they are, it would be a great loss were the Commission not able to provide support. We only do so when no other support is available and have a Memorandum of Understanding with the Legal Services Commission to this effect on the provision of legal aid.

A proposed budget of £1 million is hard to assess at this point. Without the costs associated with casework, and with a small number of Commissioners and an envisaged staff of only ten, this may appear reasonable. However it is the experience of the Northern Ireland Commission that the core function of promoting human rights and providing education and training and publications, is also resource intensive. Both in terms of cost and staff time this area of work can easily be underestimated. However, partnerships can help. For example the Northern Ireland Commission was able to develop, in partnership with the Department of Education and the Local Education and Library Boards, materials for use in all post-primary schools in Northern Ireland. The Scottish Commission also has the capacity to charge for the delivery of education and training which, provided such income is not deducted from the core budget (make sure this is explicit in your Financial Memorandum!) may help.

A proposed power to intervene is outlined in detail in the Scottish Commissioner for Human Rights Bill. It is well known that the NIHRC had to go to the House of Lords in 2002 to establish our ability to intervene in the courts on a point of human rights law. Since then we have used interventions regularly and with the support of the courts who to date appear to welcome this role. It is a tidy, cost effective and easily managed process. However occasionally, it is important both to be able to support a critical case or when necessary, to be able to take a case in the Commission’s own name. Like the power to investigate, this is a power to be used proportionately and reasonably and therefore effectively. The House of Lords ruling makes clear that the Northern Ireland Commission can intervene in all the courts; a limitation to interventions in civil actions such as is proposed for the Scottish Commission seems unnecessarily restrictive.

Another restriction that may prove problematic, is the competence to comment only on devolved issues and not on reserved matters. For example, immigration detention centres would not be defined as Scottish public authorities by virtue of section 17(b)2. How will the Commission address human rights concerns affecting Scotland but determined by the law

229 †339 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D

and practice of UK authorities in relation to reserved matters? Whilst the role of the prospective Commission for Equality and Human Rights in GB (CEHR) has this function, there will need to be a close and empathetic relationship between the two Commissions if local concerns are to be satisfied in this way.

The relationship with the CEHR, as described in the Equality Bill currently before Parliament, and the relationship with other relevant bodies such as the Children’s Commissioner, will also need to be addressed. In Northern Ireland there is no shortage of regulatory bodies. It is a very crowded field in which we operate and to date, Memoranda of Understanding have been developed with our closest colleagues such as the Police Ombudsman, the Children’s Commissioner, and the Equality Commission amongst others. It is important to keep these relationships under active review to ensure that the Memoranda of Understanding are in fact working documents that have some relevance in daily practice. The Scottish Commission may be unnecessarily inhibited in its practice by the exclusion of children’s hearing procedures at section 11(1). The NIHRC receives many family law enquiries which often engage Articles 6 and 8. While mutual respect for each other’s roles is essential with other regulatory bodies such as the Children’s Commissioner, it is perhaps overly prescriptive to have specific exclusions in the governing legislation.

Similarly the explicit role of the Scottish Human Rights Commission in promoting the human rights standards of any international convention, treaty or instrument is extremely important. Perhaps this does not need to be limited to those instruments which have been ratified by the UK government, as in section 2 (b). Without such an explicit power the Commission will be free to work on unratified or derogated or soft law standards as well. The predominance of the Human Rights Act 1998 and the Scotland Act 1998 is understandable and chimes with the focus of the proposed CEHR in GB. There is however a valuable and important function for national human rights institutions in promoting internationally agreed minimum standards across a range of issues not always governed by domestic legislation. It is commenting on government’s periodic reports to various treaty bodies to the United Nations and Council of Europe that provides an opportunity for the institution to connect the policies and practices of states with the experiences of those affected. The Commission has an opportunity to provide a channel of information to NGOs and interest groups on human rights standards and in turn, to report back to treaty monitoring bodies on how those obligations are being fulfilled by the government.

Networking and mutual support among national institutions has proved to be of great benefit to the Northern Ireland Commission. Through the Office of the High Commissioner of Human Rights at the United Nations and in the Council of Europe the NIHRC has benefited greatly from technical advice and support; in addition the NIHRC has been able to share its experiences with other developing institutions internationally. The accreditation of institutions at the United Nations is highlighted in commentary on the Scottish Commissioner Bill and is worth considering. Since the decision this year of the Human Rights Commission at the UN to allow national institutions to engage with any item of their agenda, accreditation has become a more important issue. The International Coordinating Committee of national institutions is conscious of the need to develop criteria for accreditation and to apply these with some consistency. The rapid growth in recent years of national institutions reinforces this need and with the establishment of the CEHR and the Scottish Commission, it is particularly important that within the UK, accreditation is fairly and clearly distributed. At present the NIHRC has ‘B’ category status, as a sub-national institution. Without the power to support individual cases or to challenge the courts, there may be some doubt as to the Paris Principles compliance of the Scottish Commission which could affect its standing at the UN. However much of this remains to be developed within the International Coordinating Committee (ICC) which will be reviewing this process before the next meeting of the Human Rights Commission in April 2006.

On a practical level the appointment of a full time Commissioner by Parliament, with the option of up to two full or part-time Commissioners, is a reasonable way to proceed initially, so long as the appointments are publicly advertised and human rights expertise is a core criterion. The process and the appointments will be an important first statement for the Commission and will set the tone for its future credibility with civil society. It may be, and not

230 †340 Justice 1 Committee, 1st Report, 2006 (Session 2) – ANNEXE D just on this issue, prudent to include a review clause, such as that in the Northern Ireland Act 1998, requiring the Commission to provide a review of its powers and effectiveness within a set period. There are pros and cons to various models of human rights commissions. A small number of full time Commissioners, a mix of full time and part time Commissioners, small numbers, large numbers, each has its merits and demerits. It would be useful within a given period of time, for the Scottish Commission to evaluate, amongst other issues, this particular model in the light of experience.

The NIHRC is delighted that the Scottish Commission is so close to establishment. We look forward to working with colleagues in Scotland on local issues, at UK level and internationally, from a very early stage. Please don’t hesitate to get in touch if there is any useful contribution we can make.

Paddy Sloan Chief Executive, NIHRC November 2005

231 †341 Written evidence to the Justice 1 Committee

Anderson, James D Association of Chief Police Officers in Scotland Association of Scottish Police Superintendents Childline Scotland Children 1st Commission for Racial Equality Scotland Emslie, David Glasgow Council for Voluntary Sector Human Rights Scotland Humanist Society of Scotland Lovie, John McCabe, Mark Milne, Edward Moffat, Alexander D Murray, John Northern Ireland Human Rights Commission Royal Society of Edinburgh Save the Children Scottish Children’s Reporter Administration Scottish Council of Jewish Communities Scottish Drugs Enforcement Agency Scottish Enterprise Scottish Legal Aid Board Scottish Parliament Audit Committee Scottish Parliament Education Committee Scottish Parliament Equal Opportunities Committee Scottish Parliament Health Committee Scottish Parliament Procedures Committee Scottish Parliament Standards Committee Scottish Refugee Council Scottish Water Sheppard and Wedderburn Smith, Katherine UNISON Winetrobe, Barry Youthlink Scotland

†342 Written submission from James D. Anderson

My wife and I were horrified to note in our local newspaper today, that you, the Scottish Executive, intend to introduce yet another highly paid member of staff, consultant or call it what you will, in the form of a Human Rights Commissioner, to add to the never- ending list of unnecessary jobs that have already been created by you. We already have a (highly controversial) Human Rights body in the European Parliament. Anyone aggrieved by a decision by your proposed “Commissioner” will immediately take their case there. For goodness sake, there must be very few people who are not aware of their Human Rights these days, due to the never ending string of cases taken to Strasbourg, and given publicity in the newspapers!

Having now read the transcript of the proposed Bill on your website, I see that this motion has been simmering within your various committees, and groups of learned thinkers for the past four years. (Who are they??). We therefore take it that, no matter how many objections you receive, the proposed "Bill" will now be approved on the nod.

Please have more care in spending our money, not by adding another piece of deadwood to your organisation, but by looking into ways of clawing back the moneys already pouring out of the public purse in the many unnecessary quangos and job creations that are now advertised in central and local government.

These opinions are echoed by just about every person with whom I have discussed the Civil Service job creation culture in Scotland. Depressingly, no doubt, our views will be crushed by bureaucracy.

Can you please confirm that our views have been passed on to the relevant person(s).

James D. Anderson 11 October 2005

Supplementary comments received

After sending our email yesterday, we are further taken aback to learn from another source that this unnecessary post could cost Scotland £1 million per annum. If this is so, how can this scandalous waste of money be justified? Yet another £1 million down the drain of political correctness. Can you please heed the voice of the public, who you are supposed to represent?

James D. Anderson 12 October 2005

†343 Written submission from the Association of Chief Police Officers in Scotland

I refer to your correspondence dated 10 October 2005 in connection with the above subject which has been considered by members of the Diversity Business Area and can now offer the following by way of comment.

For ease of reference the questions on which the Committee sought specific comment are outlined below followed by the ACPOS response.

Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

ACPOS welcomes the establishment of the post of Scottish Commissioner for Human Rights. The proposed duties and remit of the Commissioner would assist public authorities, the police service and the general public to gain a greater understanding of such important issues. It is recognised that it is more practical and less bureaucratic for organisations, as well as the general public, to deal with a single organisation on such complex and diverse matters.

ACPOS considers it essential that there is close liaison between the Commissioner and the new Commissioner for Equality and Human Rights which is understood will be established in 2007.

What would such a body add to existing mechanism for protecting Human Rights in Scotland?

The statutory basis of the Human Rights Commission in Scotland would provide focus and underpin the motivation and commitment already shown by the Scottish Police Service in respect of the protection of Human Rights.

How should the Commissioner be accountable?

In respect of annual reporting the Commissioner should be independent from the government and only accountable to the Scottish Parliament. The requirement for the Commissioner to report annually to parliament and comply with any direction given by the parliamentary corporation regarding the form and content of the report, provides balanced accountability.

Compliance with any directions given by Scottish Ministers in relation to the keeping of proper accounts and accounting records, as well as the provision of annual accounts to the Auditor General for Scotland and to anyone who requests them, appears adequate to meet this need. Such independence and public accountability would also provide openness and promote confidence in the system.

Do you think that the proposed funding of £1million per annum will be adequate given the proposed remit of the Commissioner?

†344 ACPOS has not comment to make on this issue.

What lessons might be learned from other Commissioners/Ombudsmen set up under the auspices of the Scottish Parliament/Scottish Executive?

It is vital that the public are advised of the existence of such Commissioners and this will be achieved using various methods of publicity. It is suggested that a structure of engagement which offers continual dialogue, allows for the sharing of ideas and best practice, as well as the provision of clear guidance to public authorities will also assist in meeting common goals.

Do you have any views on the proposed remit of the Commissioner?

The proposed duties and remit of the Commissioner appear to be both appropriate and relevant. It would appear sensible that the role of the Commissioner allows inquiries into general human rights issues, but not to investigate, support or rule on individual cases, which will help retain the independence of the post and focus on strategic aspects.

Chief Constable William Rae, Hon. Secretary 14 November 2005

Written submission from The Association of Scottish Police Superintendents

Thank you for seeking the views of the Association of Scottish Police Superintendents on the Scottish Commissioner for Human Rights Bill. The Association welcomes the opportunity to make comment on this issue, and, as such, I hope that the following views will be of assistance.

Question 1 Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

It is the view of The Association, that it would be necessary to ensure that there is close liaison between the proposed Scottish Commissioner for Human Rights and the proposed Commission for Equality and Human Rights. It is understood that the Commission for Equality and Human Rights will deal with all equality issues, in addition to reserved human rights matters for Scotland, and that there will be a Memorandum of Understanding between the two distinct entities.

It is important that the Service Users, and the General Public understand the distinctions between the two, which, in itself, may present a challenge.

At present, there is no central reference point for Human Rights legislation, and, if the Commissioner provides this function, the creation of such a post will undoubtedly be a positive step.

†345 Question 2 What would such a body add to existing mechanisms for protecting human rights in Scotland?

Having due regard to existing mechanisms of the Civil and Criminal Courts, and processes facilitating the right of appeal, The Association considers that redress for Human Rights issues is already provided for by the National and International Judicial Systems.

Unless the Commissioner is afforded the power to decide on such matters, powers, which the Association would disapprove, then we see that the role of the Commissioner would be simply to proactively raise awareness and ensure compliance of human rights principles.

Question 3 How should the Commissioner be accountable?

It is the view of the Association that the Commissioner should be accountable to the Scottish Parliament, be required to report regularly on how value is being added to existing processes, and to justify the costs involved. Careful consideration should be given to the criteria applied in order to quantify the effectiveness of the role, and to safeguard against evaluation that is wholly subjective.

Question 4 Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

The Association is not sufficiently sighted with regard to the proposed expenditure to provide a response on this matter.

We would, however, care to express concern over the potential that exists for the increasing financial demands of the Human Rights Commissioner on the finite Public Services Budget, to the detriment of the core services, for example Police, Health Care and Social Work.

Question 5 What lessons might be learned from other Commissioners / Ombudsmen set up under the auspices of the Scottish Parliament / Scottish Executive?

The Association considers that there is a clear need for transparency in the selection process, and that the role and the individual require to be credible in order to gain the respect of stakeholders, prior to exerting influence.

We consider that there have been occasions in the past when suchlike Commissioners have been outspoken, and, as a consequence have created unnecessary pressure on Public Bodies before fully assessing the impact of their views.

The Police Service is already, in itself, heavily policed and subject to multifaceted scrutiny. Whilst embracing transparency and openness, we would be less welcoming of

†346 further additional sources of pressure, which may detract, diminish, or cause conflict with the existing levels of inspection and review.

Question 6 Do you have any views on the proposed remit for the Commissioner?

It is understood that the Commissioner will not perform any form of enforcement role, but instead will promote awareness, encourage best practice, review existing law and policies and recommend changes, provide education, advice and research, and may conduct enquiries where relevant.

The Association considers that the remit of the Commissioner appears to be well balanced in this regard, however it would be preferable if proper cognisance is taken of the need to provide, not simply education of Human Rights, but also the responsibilities which accompany these rights.

It would be superfluous to have a number of independent commissioners carrying out enquiries under different headings, having Human Rights at the heart of the issue in each case.

As Human Rights legislation has developed and evolved over the years, it has become a more and more complex issue both to understand, and to apply. It would undoubtedly be a challenge to the Commissioner to disentangle this and to provide direction.

Peter Murphy, Research Officer 11 November 2005

Written submission from Childline Scotland

ChildLine Scotland is the free telephone helpline for any child or young person with any problem. Last year we provided a telephone counselling service to over 30,000 children and young people who called about a wide range of problems including bullying, physical and sexual abuse, family problems, amongst many others.

Children’s rights Children and young people don’t often call ChildLine to ask specifically about rights - when they do it is often about their rights if they are living away from home. However children do ask about their rights indirectly when they enquire about what they or others are allowedtoornot allowedto do. For example some young people ask us if they are allowed to go to see the doctor on their own and whether the consultation will be confidential. Others ask if their parents or carers are allowed to hit them or harm them. What is clear from these calls is that many children are not aware of their rights. ChildLine volunteer counsellors can help callers to understand their rights in relation to

†347 problems they are experiencing. We believe that children have a right to information to empower them and help them make informed decisions about their lives.

Young people’s lack of understanding about their rights is also clear from active consultation with young people. At ChildLine Scotland’s 2004 Young People’s Conference (YPC), delegates discussed rights and made recommendations to a group of policy makers including the Children’s Commissioner. The following is an extract from the conference report:

The young people in the rights group were passionately interested in the issues, which were explored as much as possible in the limits of the day. The mood in the group was positive, but at times tense. This was discussed and it was clear that some young people felt frustrated about their own lack of knowledge of their rights, as well as that of their families and teachers. Their recommendations for policy and practise were as follows:

• Every child and young person should know more about their rights. • Every child and young person should know where to go to find out their rights • Schools should tell you more about your rights. • At home, parents and carers should know what children's rights actually are.

A children’s commissioner ChildLine Scotland actively campaigned for a commissioner for children and young people in Scotland and is delighted that the post is now in place. We believe the establishment of the commissioner’s office is vital in ensuring that children’s rights are respected and protected within law, policy and practise. We also have high hopes that it will significantly impact on children and young people’s access to information and knowledge about their rights, which we believe remains seriously underdeveloped despite almost 15 years of the UN convention.

Children’s rights are human rights It is in a similar vain that we welcome a Scottish Commissioner for Human Rights as instrumental in promoting human rights and monitoring compliance to human rights legislation and convention in Scotland today. As with the children’s commissioner, we also believe raising awareness of human rights will be a vital aspect of the new commissioner’s agenda which we hope will impact on the whole population - adults and young people alike.

Whilst welcoming this development however, we are also keen to understand how these two offices will work together. Despite often being perceived as antagonistic, the children’s rights agenda and the human rights agenda are to a great extent one in the same. As Kathleen Marshall pointed out at ChildLine Scotland’s last YPC:

The Children’s rights agenda should be (known by) anyone who has contact with young people. One of the things we also need to talk about is children’s rights as human rights

†348 – these are not separate issues. We are trying to get human rights more on the agenda in our society and human rights apply to everyone. Children are not just an optional extra. The word that keeps coming up with young people is respect – respect for human beings no matter what age they are or where they come from. That has to be something that is widespread.

Given the obvious commonality, we are keen to understand how these offices will work together to support and enhance both the human and children’s rights agenda without overlapping or contradicting each other. We also look forward to receiving clear information both at agency and public level of the distinct yet common roles of the respective commissioner’s offices.

Alison Wales, Childline Scotland 21 November 2005

Written submission from Children 1st

1. Introduction

1.1 For over 100 years CHILDREN 1ST, The Royal Scottish Society for Prevention of Cruelty to Children, has been working to give every child in Scotland a safe and secure childhood. We support families under stress, protect children from harm and neglect, help them recover from abuse and promote children's rights and interests. We provide 33 services in 18 local authorities as well as 5 national services including ParentLine Scotland which is the free, national telephone helpline for parents and carers.

1.2 Throughout Scotland our staff and volunteers use their skills to help children overcome the difficulties in their lives and rebuild trust and confidence. For more information about how we work to keep children safe in Scotland, visit www.children1st.org.uk

1.3 CHILDREN 1ST welcomes the establishment of a Commissioner for Human Rights in Scotland and welcomes this opportunity to provide written evidence on the draft Scottish Commissioner for Human Rights Bill.

2. Title

2.1 CHILDREN 1ST questions the use of the title Scottish Commissioner for Human Rights, as opposed to using the title Scotland’s Commissioner for Human Rights. The latter version would emphasise that the Commissioner is for all people in Scotland, no matter who they are or where they are from.

†349 3. Children’s rights

3.1 CHILDREN 1ST notes that the Scottish Commissioner for Human Rights (SHRC) will be charged with promoting the human rights of people of all ages in Scotland, including those rights defined under the UN Convention on Rights of the Child. CHILDREN 1ST notes the overlap in statutory purpose and functions between the proposed SHRC and Scotland’s Commissioner for Children and Young People (SCCYP).

3.2 CHILDREN 1ST believes that the SHRC and SCCYP could complement and strengthen each other’s work provided that there is close cooperation and communication between them. For example, in an issue about the human rights of families, the SCCYP could act and speak about the rights of the children in families whilst the SHRC can promote the human rights of the whole family.

3.3 However, there is also the danger that if these two Commissioners do not cooperate as would be hoped, their individual work could muddy the clear message of the other and ultimately hinder steps to promote human rights in Scotland. The Bill includes a requirement to not duplicate other work where possible (Section 14), but this does not adequately address the problems that may arise. CHILDREN 1ST is concerned that such cooperation should not rely upon the individual goodwill and approach of the Commissioners.

Instead, CHILDREN 1ST recommends that the Bill should be amended to include a reference to a positive duty upon the SHRC to cooperate with the SCCYP.

4. Equal Opportunities

4.1 CHILDREN 1ST also notes the absence of a clause requiring the SHRC to have regard to equal opportunities. Such a clause is already found in legislation such as the Scotland Act 1998, the Local Government in Scotland Act, and the Further and Higher Education (Scotland) Act 2004. It is important that all public bodies have a specific statutory requirement to promote equal opportunities in the widest possible sense.

5. Term of appointment

5.1 The Bill proposes that the SHRC should be appointed for a five-year term with the possibility of reappointment for a further five years, similar to the SCCYP’s term of office. CHILDREN 1ST in no way suggests that the possibility of reappointment currently curtails the SCCYP’s work. However, we are concerned that the appearance and reality of independence from any public body is critical for the impact of an organisation aimed at promoting and addressing human rights issues, wherever they occur.

5.2 The Children’s Commissioner in Wales is unique amongst the Children’s Commissioners across the UK in being appointed for one seven-year term maximum,

†350 with no possibility of reappointment. CHILDREN 1ST believes that such a one-off term is preferable and therefore suggests that the Parliament should consider amending the proposed SHRC term of office to a seven year term with no reappointment.

6. Children’s Hearings

6.1 The Bill gives the SHRC the power to intervene in all civil proceedings except for children’s hearings. Such an exception for children’s hearings does not appear to make sense given that these hearings have a considerable influence on the lives of Scotland’s most vulnerable children. It is precisely in such contexts that individuals’ human rights must be of paramount concern.

Mhairi Snowden, Policy and Information Officer 18 November 2005

Written submission from the Commission for Racial Equality Scotland

Introduction

The Commission for Racial Equality, Scotland (“CRE Scotland”) is very pleased to be given the opportunity to submit its views on the Scottish Commissioner for Human Rights Bill.

The CRE is charged with three duties under the Race Relations Act 1976:

• working towards the elimination of racial discrimination; • promoting equality of opportunity and good race relations between persons of different racial groups generally; and • keeping under review the workings of the Race Relations Act 1976.

CRE Scotland is very supportive of the proposal to establish a Scottish Commissioner for Human Rights and of some of the provisions in the Scottish Commissioner for Human Rights Bill (“the Bill”). It does however, have some serious concerns about some aspects of the Bill. These concerns relate primarily to the powers given to the Scottish Commissioner. CRE Scotland is of the view that these powers, in some respects, should be more extensive. Secondary concerns relate to a lack of clarity in relation to certain matters, set out in the Bill and to how the Scottish Commissioner for Human Rights will work with the Commission for Equality and Human Rights (“the CEHR”).

Specific Issues

1. Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

†351 CRE Scotland is firmly of the view that a Scottish Commissioner for Human Rights should be established.

The establishment of such a Commissioner sends a clear message that there is a genuine commitment that human rights should play a central role in Scottish society in relation to those public authorities which have devolved functions and which the Scottish Parliament has responsibility for. That is very appropriate given the obligations set out in the Scotland Act to the effect that the Scottish Parliament and the Scottish Minister require to comply with the European Convention on Human Rights. It is also of relevance that clause 7 of the Equality Bill which provides for the establishment of the CEHR provides that the CEHR will not take human rights action in relation to a matter if the Scottish Parliament has legislative competence to take action of that kind in relation to that matter. CRE Scotland also supports the establishment of a Scottish Commissioner for Human Rights because it recognises that ethnic minorities, migrants, immigrants and refugees are often amongst those who are most in need of having their human rights protected by a specialised body. Finally and importantly, it is acknowledged at an international level that creating national institutions and appropriate infrastructures which are focussed on the realisation of human rights and are able to operate taking cultural and traditional issues into account is likely to lead to the development and protection of human rights.

2. What would such a body add to existing mechanisms for protecting human rights in Scotland?

See answer at 1. above. In addition, whilst existing mechanisms clearly play an important role, a Scottish Commissioner for Human Rights, with appropriate powers, could play a unique role in the development of human rights in Scotland. Such a person would be expected to have a high level of expertise in human rights and to be able to form a clear strategy to act as a source of information and guidance and to play an effective support, monitoring, investigative and enforcement role, in a manner which would best protect and promote human rights in Scotland. Such a person would also be able to be a good point of contact for working with the CEHR in relation to human rights matters in Scotland which fall outwith the authority of the CEHR.

3. How should the Commissioner be accountable?

The Commissioner should be accountable to the Scottish Parliament, as the Bill provides. This is one of the strong features of the Bill. Most human rights commissions function independently of government and some will report to parliament.

4. Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

If the more extensive remit which CRE Scotland believes should be given to the Commissioner is given, the funding of £1 million per annum would not appear to be adequate. Even with the current restricted remit CRE Scotland believes that the

†352 proposed funding may be inadequate. It is recognised at an international level that it is of fundamental importance that human rights commissions are adequately funded.

5. What lessons might be learned from other Commissioners/Ombudsmen set up under the auspices of the Scottish Parliament/Scottish Executive?

CRE Scotland does not have sufficiently detailed information in relation to those other Commissioners/Ombudsmen to provide a meaningful response to this question.

6. Do you have any views on the proposed remit for the Commissioner?

Whilst there are clearly very positive aspects to the remit (such as the accountability to Parliament and the power to enter places of detention), CRE Scotland does not believe that the proposed remit of the Commissioner is sufficiently wide and it is also concerned that in some respects there is a lack of clarity in relation to aspects of the remit.

In reaching this view CRE Scotland takes into account the Paris Principles. Those principles provide that human rights commissions should have as broad a mandate as possible.

Whilst acknowledging that it is for the Scottish Parliament to determine the remit of the Scottish Commissioner for Human Rights, CRE Scotland has also taken into account the remit of the Irish Human Rights Commission and the proposed remit of the CEHR. CRE Scotland believes that the latter is particularly significant since in relation to certain important matters (set out below) the proposed remit of the CEHR in relation to human rights is wider than that of the Scottish Commissioner for Human Rights. If enacted there will be a risk that this will create a two- tier system in which human rights outwth Scotland and in relation to reserved matters will potentially be protected and promoted in a more comprehensive and effective manner than in relation to devolved matters in Scotland. This would appear to be highly undesirable.

The particular points of concern are summarised below:

(i) There is no mention of the Scottish Commissioner for Human Rights having to prepare a strategic plan (as in clause 4 of the Equality Bill). There would appear to be benefits of incorporating a similar duty in the Bill.

(ii) Although the Scottish Commissioner for Human Rights must lay an annual report before Parliament there is no requirement on him or her to monitor and to report on progress on human rights. This contrasts with what is set out in clause 12 of the Equality Bill. There would appear to be a case for incorporating a similar requirement in the Bill.

(iii) Clause 2 of the Bill appears to be too narrow. This is a fundamental issue given that the remit of the Scottish Commissioner for Human Rights is, in large part, defined by the general duty. CRE Scotland is of the view that the general duty should be extended so

†353 that it explicitly refers in clause 2 to the Commissioner strengthening, protecting and upholding human rights.

(iv) Clause 3 could explicitly set out a role for the Scottish Commissioner for Human Rights on advising government in relation to human rights matters. Such a role could dovetail with clause 11 of the Equality Bill.

(v) The CEHR has more extensive powers in relation to inquiries than the Scottish Commissioner for Human Rights. It seems that it will be able to conduct named investigations and make findings that there has been a breach of the Human Rights Act. The restriction for the Scottish Commissioner for Human Rights in relation to investigation being possible only if the subject of the investigation is the only authority with such functions (unless there appears to be a breach relating to torture) severely limits the power to carry out inquiries.

(vi) The use of the word “staff” in clause 7 (2) (b) of the Bill appears to lack the requisite degree of clarity. For example does this include a consultant or an agency worker? If enacted will the clause extend to individuals who worked with the public authority at the relevant time but no longer do?

(viii) Clause 14 appears to lack a degree of clarity and sufficient scope. There should perhaps be a reference to the Commissioner’s duties. The CEHR could be explicitly referred to. It might be of assistance to dovetail such a reference with the provisions of clause 7 of the Equality Bill in relation to human rights matters that fall outwith the remit of the CEHR and in relation to those matters which the Scottish Commissioner for Human Rights may work with, or refer to, the CEHR. There is a particular concern that as there is no clear power for the Scottish Commissioner for Human Rights to consent to the CEHR using its powers in relation to devolved matters outwith its scope that this means that the CEHR will have no power to use its more extensive powers (such as enforcement and judicial review) even where the Scottish Commissioner for Human Rights has referred the matter to the CEHR. Clause 14 might also set out explicitly that the powers of the Scottish Commissioner for Human Rights to consult and co-operate extend outwith Scotland, including internationally.

(viii) Clarity and guidance should be given at an early stage in relation to the powers and duties of the Scottish Commissioner for Human Rights to work with the CEHR in a manner that lessens the clear risk that the public will be confused about the respective roles of the CEHR and the Scottish Commissioner for Human Rights. For example consideration could be given to a protocol in relation to how the two will work together and to the co-location of offices. Guidance might be obtained from the manner that existing authorities work together. If it is made clear to the public that efforts are being made to streamline working arrangements this may help to address any negative views in relation to the use of public funds in this area.

(ix) The CEHR has powers to support individual human rights cases, in certain circumstances. The Scottish Commissioner for Human Rights has no such power. This

†354 is a matter of concern for CRE Scotland. This is compounded by the fact that Scottish Commissioner for Human Rights has no grant giving powers and so is not able to help fund organisations which will support and take individual cases. The CRE has grant giving powers which it has used extensively to support other organisations who help individuals seek redress through courts and employment tribunals. This also serves to raise awareness and to promote relevant issues. Similar needs apply in Scotland as they do in England for individuals to be able to seek redress for breaches of human rights and for grant giving.

(x) The CEHR has powers, in certain circumstances, to bring judicial review proceedings. There is no equivalent power for the Scottish Commissioner for Human Rights. Although he or she can intervene in an existing case this is not sufficient since there are bound to be situations where he or she would wish to bring proceedings but no case has been raised by another party. There is no power to bring proceedings in the public interest. This is a matter of concern which should be addressed since it would appear to undermine the ability of the Scottish Commissioner for Human Rights to operate strategically.

The Commission for Racial Equality, Scotland. 5 December 2005

Written submission from David Emslie

I will give you my views on the Scottish Commissioner for Human Rights.

Question 1

Yes I think a Scottish Commissioner for Human Rights would be a good idea, it would be I believe necessary under the Human Rights Act 1998, we require a Scottish Commissioner in Scotland as Human Rights are being breached by the British Government and the Scottish Government to such an extent that I and thousands of others believe we are in a Third World Puppet Dictatorship Country. Most breaches of the Human Rights Act 1998 is in Scotland and is by the Scottish Parliament and the Scottish Executive, the next is the Corrupt Law Society of Scotland, then the Court System in Scotland, as they all have total contempt for the Human Rights of individuals in Scotland. The Scottish Court Services can only be described as Corrupt, and Sheriffs and Judges have no fear of breaching anyone’s Human Rights in Scotland, as when anyone goes to the European Court of Human Rights the British Section that deals with this, refuses to give the details of the person in that office if you telephone them, when you get a letter from them, it does not tell you if they are male or female, and when you ask for the person when you telephone them and make reference to the letter you have received they refuse to say if you are talking to that person, so the breaches in the Human Rights we get here is reinforced in the British Section of the Human Rights Court in Europe, and why should we have to go to Europe when this

†355 could be done by a Human Rights Commissioner here in Scotland. And about 98% of cases from the UK are dismissed by them saying you did not comply with the procedure, and they refuse to tell you what you have not complied with, and state that your case has been heard by Judges, when this is just a lie, they are protecting the UK from being exposed as the Government that has the most breaches of Human Rights than any other European Country, and those in the British Section of the Human Rights Office are defeating the ends of Justice by throwing cases out without having a hearing.

Question 2

We have no protection at the moment, I have two interim interdicts against me in the Court of Session in Edinburgh, they were granted in 1997, I cannot get Legal Aid to have a full trial of the case, I cannot get a Solicitor or an Advocate to help me with this, I have no money to pay for Legal Representation, the Faculty of Advocates refuses to allow me to use its Free Legal Services Unit and its Free Representation Unit, which was set up for helping people like me, this is a breach of my Human Rights Article 5. And I am being discriminated against. Article 5 states that I must have a fair and impartial hearing of my case in a reasonable time. Interim Interdicts against me for almost 9 years, this is not a reasonable time, I have exposed and have un-refutable evidence of fraud on taxpayers money, fraud on hundreds of Housing Association Tenants, fraud on housing benefit, fraudulent service charges, and I have the evidence but I cannot have a hearing in my case. The people that have the Interim Interdicts against me refuse to proceed with the case and get it to into Court, as they know they will not win the action, and the people that have perpetrated the fraud on me and hundreds of others are protected from being exposed by my evidence. The case is sitting in the Court of Session. The evidence I have proves this fraud beyond all reasonable doubt, but I cannot get it tested in Court (ENCLOSED SOME DOCUMENTS OF THE FRAUD ON ME AND MANY OF THE MOST VULNERABLE PEOPLE IN SOCIETY. We have no access to justice, we cannot get Legal Aid, have no money, and our Human Rights are being breached day by day, month by month, year by year, with no way or means to do anything about it, which is in itself a Breach of our Human Rights.

Question 3

The Commissioner should be accountable to the European Court of Human Rights, so that nobody in Scotland can influence any of his decisions or bring pressure to bear on him, so that the Scottish Parliament and the Government cannot interfere with his independence, you cannot have a person who is upholding individuals Human Rights being controlled by the people that are abusing their Human Rights in the first place, it would then just become a joke, and he would only be a puppet of the perpetrators of Human Rights Abuses. This Scottish Government and Scottish Executive are the biggest abusers of Human Rights in Europe.

†356 Question 4

The Human Rights Commissioner should have as much funding as is required to protect the fundamental Human Rights of Scottish individuals from systematic abuse by those in power who have total contempt for the ordinary citizens of Scotland that have no access to justice, and have no protection in the Judicial system in Scotland, the recent large amount of submissions to the regulation of complaints by the Law Society of Scotland and Faculty of Advocates, has highlighted widespread systematic abused being perpetuated of individuals in Scotland, and by the Scottish Parliament, the Scottish Executive, the Law Society of Scotland, the Faculty of Advocates and the Scottish Court Services, which includes all the Courts in Scotland, Sheriffs and Judges that fail and refuse to do anything about Human Rights abuses in the Civil side of the Judicial system, but have perfected the protection of Criminals under the Human Rights Act, but have not applied the same expertise and vigour to Civil Cases in Scotland, they have just abandoned the practice of protecting those involved in Civil actions, which have clear evidence of Human Rights Abuses as far as access to impartial Legal Representation is concerned, and in most cases have not been able to get representation when using the Court System to protect themselves, their property and personal freedoms under the Human Rights Act 1998. Criminals are all protected by the system, no shortage of Legal Aid for them, but no Legal Aid for Civil Cases and abuses of an individuals Human Rights, by theft of property, illegal and fraudulent rent increases on tenants as in my case for twenty two years, all documents and evidence on file, fraudulent service charges proven and detailed in Government documents over sixteen years, and still continuing year in year out without any relief in sight, and those who can stop this fraud refuse to intervene, and continue helping the perpetrators of the fraud and criminality, and the Scottish Executive and the Scottish Parliament know and have evidence of the massive fraud and they also refuse to take action to stop it.

Question 5

The Scottish Human Rights Commissioner MUST HAVE FULL POWERS TO ENFORCE HIS DECISIONS AND TO COMPENSATE THE VICTIMS OF HUMAN RIGHTS ABUSES BY THE ARRESTMENT OF PROPERTY, MONEY AND GOOD. But the Scottish Executive and the Scottish Parliament will give him/her a remit that is so restrictive that it will make him/her nothing more than another impotent public funded official. The Scottish Executive and Scottish Parliament is content with the horrendous abuses perpetrated on the ordinary and vulnerable people of Scotland, and has nothing but contempt for them, the Human Rights Abuses are nothing more than irrelevant to them. All the other Ombudsman that has been set up by the Scottish Executive and Scottish Parliament are nothing more than toothless tigers with no powers and no remit to investigate and adjudicate on the very serious issues which they were set up to investigate and adjudicate on, and have become nothing more than whistle blowers with no whistle, and nobody will listen to the serious issues they continually highlight.

†357 Question 6

The proposed remit should be to investigate any Human Right Abuses by any person in Scotland without them first having to go through hundreds of hoops, and to spend years trying to sort out the problem, and first having to exhaust the Ombudsman Services that are set up to frustrate them, and have no powers to do anything, and then go to the Civil Court System, which is impossible to exhaust, as the Corrupt Legal Profession will entrap you in it for the rest of your life, it can never be exhausted, and without any money and Civil Legal Aid it is impossible, even if you have money the Legal Profession will not fight your corner against anyone with any power, influence, money, business, or is part of a large conglomerate, or a Government Department, or any corrupt organisation regulated and funded by the Scottish Executive, that is fraudulently abusing taxpayers money, by fraud and criminality.

I do not wish any part of this submission redacted by anyone, especially a Solicitor, and I wish it to be published as I have sent it to you, with the enclosures also not redacted in any way, as I know the Scottish Executive and the Justice 1 Committee have a track record of redacting the truth, fact and evidence presented to them in any inquiry or submission, to protect those involved in criminality, fraud and deception, and to cover up the Scottish Executives impotence to act in and on the behalf of the Public Interest in Scotland.

David Emslie 12 November 2005

Written submission from Glasgow Council for Voluntary Sector

1. Introduction

1.1 The Scottish Executive has published the Scottish Commissioner for Human Rights Bill. The fundamental purpose of the Bill is to create a Scottish Commissioner for Human Rights which will promote awareness and understanding of, and respect for, human rights.

1.2 Glasgow Council for the Voluntary Sector (GCVS) welcomes the opportunity to provide evidence to the Scottish Parliament’s Justice 1 Committee.

1.3 GCVS is the main development agency and membership organisation supporting voluntary organisations and community groups in Glasgow. Our members represent the broad spectrum of community and voluntary activity taking place across the city and include voluntary organisations working to promote human rights.

†358 2. Key Questions:

2.1 Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

2.1.1 Yes, we believe the Scottish Commissioner for Human Rights (SCHR) should be established as an independent body accountable to the Scottish Parliament.

2.1.2 The Commissioner would be able to provide the appropriate advice and information required by voluntary and community organisations, who seek to ensure they take the necessary steps to avoid breach of the Human Rights legislation.

2.1.3 This Commissioner will be beneficial for community and voluntary organisations who work with individuals whose rights are affected or who work to promote human rights. This officeholder would be able to provide these organisations with assistance in learning about and discussing the scope of human rights legislation.

2.1.4 The SCHR could encourage voluntary and community groups to use the Human Rights Act and other international human rights standards as tools to negotiate better standards of public service for their clients.

2.2. What would such a body add to existing mechanisms for protecting human rights in Scotland ?

2.2.1 It will be important for the CEHR to have an effective relationship with SCHR. There is an expectation that the Commissioner will take a clear lead in promoting human rights in devolved policy areas…, while the CEHR will act in non-devolved areas.

2.2.2 GCVS support the view of the Scottish Voluntary Sector Equality and Human Rights Coalition that there is a need for “clarity regarding the devolved competencies of the Scottish Commissioner for Human Rights, and the need for the CEHR to develop a synergy between the enforcement of anti-discrimination legislation and the promotion of human rights”.

2.2.3 There is no reference in the bill to the Scotland Act definition of equality. We would suggest that the SCHR should at least be required in itself to respect the Scotland Act provision, but it would better if it were also required to monitor the application of those provisions as part of its human rights remit.

2.2.4 Equality is a fundamental human right, enshrined in every human rights treaty, to this end the SCHR will operate on equality issues, however the CEHR will also operate on equality issues in Scotland, therefore a Memorandum of Understanding will be required on how the two bodies will handle such issues in overlapping remits. Consideration will also need to be given to how to present this information to the public

†359 to ensure that it is accessible as possible and no confusion exists in the public mind as to who to contact should a problem arise.

2.2.5 We agree it is essential that the existing Commissions, representatives of the new equalities strands and the SCHR when established, work closely together. We believe it will be essential for the SCHR to establish Memoranda of Understanding with the proposed Commission for Equality and Human Rights, the Commission for Racial Equality (until included in the CEHR), the Commissioner for Children and Young People and the Information Commissioners. The SCHR may wish to consider co-locating with one or more of these bodies, or providing a single gateway service.

2.3 How should the Commissioner be accountable?

2.3.1 We support the proposed model for the Commissioner to be accountable to the Scottish Parliament, and this is important to ensure his or her credibility. We suggest that the Scottish parliament should resolve that there will be a debate of the SCHR annual report after it has been laid before Parliament. This will ensure proper scrutiny of its work and raise awareness of it.

2.3.2 There is a need for commissioners to have a legal or human rights background. The commissioners with knowledge of Scotland will give effect to the Government’s commitment to devolution in taking account of the different political, economic and social context within which Scotland operates.

2.3.3 We support the proposal for the suggested approach of a full-time chief commissioner with 2 full time deputies and up to 6 part-time commissioners. This would provide a clearly identifiable figurehead with back-up from deputies who may cover specific rights areas from evolving priorities. The proposal for 6 part-time commissioners would allow for some diversity in the appointments and would be more likely to facilitate consistent decision-making and action.

2.3.4 GCVS supports the recommendation for appointments of Scottish Commissioners which are subject to a transparent and public process.

2.4 Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

2.4.1 There is a need for an explicit commitment to tackle disparities in resourcing between different equality strands and human rights. There are serious concerns that inadequate resources will be available to fulfil the vision and role of the Commissioner.

2.4.2 For the Commissioner’s activity is to help improve the delivery of public services across Scotland, it will need to clarify roles and responsibilities and ensure commitment to joint and partnership working, where appropriate, with the CEHR.

†360 2.4.3 The Commissioner will require resources for a National Programme to raise awareness of human rights and the proposed funding of £1 million per annum is not adequate for this work.

2.4.4 The delivery of human rights training free of charge to voluntary and community groups working with disadvantaged and vulnerable people would assist in establishing a culture of respect for human rights. Training tailored to the needs of individual organisations and focuses on the impact that human rights would be useful for specific sectors e.g. groups working with refugees and asylum seekers, people living with mental health problems, disabled people and older people who are disadvantaged by poverty, social exclusion, illness or disability.

2.4.5 There is a need for sector-specific booklets on human rights, aimed directly at service users of the core groups who are marginalised or face discrimination. The guides will express complex ideas in a simple and accessible way for service users. They should be in a variety of formats and alternative languages. This could build on best practice publications by organisations promoting human rights such as the Human Rights Scotland.

2.4.6 It is acknowledged the promotion of human rights is fundamental to the ethos of much of the voluntary and community sector. Voluntary and community organisations are representative and meet the needs of people who are experiencing exclusion or discrimination. They have a key role to play in promoting Human Rights. It is essential to make the SCHR aware of the work of such organisations and to ensure close working relationships.

2.3 What lessons might be learned from other Commissioners / Ombudsmen set up under the auspices of the Scottish Parliament / Scottish Executive?

2.3.1 The SCHR should be able to charge reasonable fees in connection with providing services, as is the case for the Children and Young People’s Commissioner and the Scottish Information Commissioner.

2.3.2 The Commissioner for Children and Young People in Scotland has provided an effective independent voice to promote and safeguard the rights of children and young people. In carrying out this role, the Commissioner has successfully raised awareness and understanding of the rights of children and young people, reviewed law policy and practice and issued best practice guidelines in the interests of children and young people. We hope that the SCHR will be recognised at the same level and be afforded the same resources as the Children and Young People’s Commissioner. The key to the role is having the statutory independence and, the moral authority and platform to speak out.

2.3.3 The SCHR will be a major power for developing human rights practice in Scotland, however it will need to be acknowledged that it will not be able to fix every human rights problem in Scotland.

†361 2.4 Do you have any views on the proposed remit for the Commissioner?

2.4.1 We support the need for the Commissioner to have a good understanding of constitutional matters and the impact of devolution as part of their overall remit.

2.4.2 We accept the proposal for a general duty to promote awareness and understanding of, and respect for, human rights. This would include all international human rights instruments that the UK has ratified.

2.4.3 It would be preferable for the SCHR to have a role to protect human rights as well. This role would be through legal enforcement such as Third Party interventions in court or acting as an amicus curiae, as well as through support for strategic cases and investigations. We would like to suggest that the full range of powers are necessary for the Commissioner to be fully effective.

2.4.4 The SCHR should be able to initiate an inquiry on his or her own initiative or in response to concerns brought to his or her attention. We support the requirement for the power to conduct inquiries to be extended to any body as proposed for the UK CEHR. We support the view that the SCHR would have legal power to obtain access to places of detention for purposes of an inquiry.

2.4.5 We agree that the SCHR would probably require to contract externally to best use resources, expertise and combine its efforts with other organisations, including community and voluntary organisations.

Martha Wardrop, Policy Officer 18 November 2005

Written submission from Human Rights Scotland

Response to Justice 1 Committee Report

I wish to register the disappointment of Human Rights Scotland at the Justice 1 Committee’s report “A Need for a Scottish Commissioner for Human Rights?”

The Committee’s report acknowledges that in terms of the Equality Bill, the Commission for Equality and Human Rights will be unable to act on human rights issues that are within the legislative competence of the Scottish Parliament, unless a Commissioner for Human Rights for Scotland, or similar body, is appointed. The Equality Bill was in fact drafted to take account of such a body. Scotland will be the only country in the UK without a body with a specific remit for the protection and promotion of human rights. (Para 31)

†362 Human Rights Scotland agrees that every statutory and non-statutory organisation has a role in promoting and protecting human rights. While we agree that diversity in interested organisations is essential, we disagree that the field of human rights in Scotland is an extremely crowded one. We would also point out that the role that can be realistically played in the promotion and protection of human rights by the voluntary sector is severely limited by inadequate funding. (Para 72)

Human Rights Scotland provides education, information and training to promote human rights throughout Scotland. It is our experience that the impression that people in Scotland have of what the term “human rights in Scotland” means to them varies greatly and is very much dependant on their own experience. For example, a person with an elderly relative in residential care is more likely to be able to relate human rights to the quality of care and dignity afforded to their relative than a person who has not had to consider the everyday implications of human rights in this way. Our Monitoring and Evaluation system consistently highlights that many people can relate human rights to wider and global issues such as world poverty, the threat of terrorist attack and immigration and asylum, but fail to understand how human rights affect the every day lives of people living in Scotland. (Para 75)

We believe that we should be aware of the danger in complacency. Many public bodies do indeed strive to meet their requirements in accordance with the law with regard to human rights. We should bear in mind however, that in order to promote a truly inclusive society, human rights principles should be a matter of good practice and not a reaction to the threat of litigation. There is a huge leap between general good practice by public bodies and legal challenge to Acts of Scottish Parliament. (Para 83)

Human Rights Scotland is concerned that the Committee may have relied too heavily on Member’s “experience” and judgement of where and how complaints made by members of the public relate to human rights. If indeed, members of the public have serious misconceptions of the term “human rights culture” this is hardly surprising given the level of education, information and advice that is available. However, we are also concerned about the temptation to label issues as “human rights breaches” or not. If human rights principles are at the core of a “human rights culture”, then it is very difficult to separate human rights issues from other issues such as equality, disability, mental health, education, child protection and privacy. It is far more likely that there could be human rights considerations within the complaint. We feel that the creation of a Commissioner has the potential to dispel public misconceptions and assist both people, and public bodies to resolve complaints without the need for litigation, rather thank leading to a more litigious society. (Para 91)

We agree that it is a matter for elected individuals in public authorities to determine public policy, and to decide how resources are prioritised. We recognise that balancing rights with the availability of resources is challenging, but would expect that a Commissioner would be able to provide guidance and advice to public authorities that would enable them to make balanced and justifiable decisions. The focus must be on promoting good practice, reducing the need for judicial oversight.(Para 94/95)

†363 In conclusion, Human Rights Scotland urges the Scottish Executive not to abandon the Scottish Human Rights Commissioner Bill as this will leave Scotland less protected against erosion of human rights than the rest of the UK. Human rights is essentially about human beings, and we would strongly encourage the Executive and Justice 1 Committee to ensure that the protection of rights for the people of Scotland remains at the forefront of the case for a Scottish Commissioner for Human Rights.

Fiona Pearson, Director.

Written submission from the Humanist Society of Scotland

On behalf of the Humanist Society of Scotland I should like make the following comments in response to the Committee’s call for evidence.

1. We believe that a Scottish Commissioner for Human Rights should be established and agree with the arguments put forward in the Policy Memorandum.

2. Such a Commission would provide an additional method of seeking redress for infringements of human rights by public bodies, which would be of particular value to people without the resources to take court action.

3. We agree that it is important for the Commissioner to be accountable to Parliament and not the Executive.

4. The budget of £1 million is acceptable as a start but if more money is need later it should be provided or the object of the Bill will be defeated.

5. We believe that other Commissioners/Ombudsmen have proved useful in providing a check, in their respective fields, on abuse of power public bodies.

6. The remit of the Commissioner is the one area where we feel the current proposals are inadequate. We firmly believe that any abuse of Human Rights occurring in Scotland should come within his remit. The basis for this argument is that Human Rights are based on international obligations under the European Convention on Human Rights, which have been incorporated into Scots Law. The position of the Commissioner for Human Rights will therefore be different to other Commissioners/ Ombudsmen. We are unhappy with the definition of a Scottish Public Authority in Section 17 (a) (ii) & (b) (ii).

For the purpose of Human Rights a Scottish Public Authority should mean any Public Authority operating in Scotland (for example BBC Scotland) since all such bodies are subject to Section 6 of The Human Rights Act, 1998, any breaches occurring in Scotland should be dealt with in Scotland.

†364 Charles Douglas Humanist Society of Scotland 9 November 2005

Written submission from John Lovie

Answer to question one. I do think that a Scottish Commissioner for Human Rights should be established, it is vital to establish a suitable person. My reason for the above statement is that the Scottish Legal system constantly abuses the Human Rights of the Scottish people, and has done for decades.

Answer to question two. There are no effective mechanisms in Scotland for the protection of Human Rights at present. The establishment of the proposed Human Rights Commissioner would hopefully fill this glaring gap.

Answer to question three. Accountable across party members of proven Proberty (ie. HONEST ONES).

Answer to question four. Given the scale of abuse of Human Rights in Scotland by the Scottish Legal system, it is very unlikely that ONE MILLION pounds would be enough, but it would be enough to get the ball rolling.

Answer to question five. No lessons can be learned from these parties, on the grounds that they have proved ineffectual to date.

Answer to question six. YES I DO. The remit for the proposed Commissioner must be of sufficient width and depth to stop the flagrant and serious abuse of the Human Rights of the Scottish people, including in particular the abuse carried out by the Scottish Legal system.

I note that the Commissioner will have no rights over the legal system, and the courts, surely this can not be right.

John Lovie 16 November 2005

Written submission from Mark McCabe

I shall answer the questions posed on the website as fully as I can, but I must say from the outset that I think the Commissioner's remit is not wide enough.

†365 1. Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

I think a Scottish Commissioner for Human Rights should be established because the Commissioner will be responsible for encouraging awareness of human rights - although, it seems, not enforcing them - which can only be a good thing.

It seems that human rights need to be emphasised in the modern day in light of legislation that seeks to undermine them. In particular, I am thinking of legislation that permits suspected - *suspected*, not convicted - terrorists to be detained indefinitely without trial; legislation that limits the right to trial by jury; legislation that abolishes the "double jeopardy" rule in murder trials, amongst others. Although this might be legislation that applies only to England and Wales, it sends a message that human rights are not as absolute as the framers of the Universal Declaration on Human Rights intended them to be following the abuses of the Holocaust.

2. What would such a body add to existing mechanisms for protecting human rights in Scotland?

I do not think the Scottish Human Rights Commissioner - with the role prescribed by the Bill - will add anything to existing mechanisms for protecting human rights in Scotland.

I say this because his role is purely advisory. He can enter only into prisons, can intervene only in civil cases and his recommendations have no legal weight and cannot be enforced. It therefore seems to me that further measures are needed to make the Commissioner's role a useful and productive one. It seems that the Bill will only establish a Commissioner who can advise on human rights matters rather than compel them to be respected.

3. How should the Commissioner be accountable?

The Commissioner should be accountable to Parliament and to its committees. Given that the Commissioner's role would seem to be a purely advisory one, it would seem pointless in making him accountable otherwise.

The Commissioner should be held accountable for any recommendations he makes in reports. He should be able to justify to Parliament or to its committees why he recommended a particular course of action in light of his findings.

6. Do you have any views on the proposed remit for the Commissioner?

Clause 3 of the Bill as it stands seems reasonable. I think that, if the Scottish Parliament or the Scottish Executive are truly committed to human rights, the Commissioner's recommendations of changes to the law should operate so that the Scottish Parliament enacts his recommendations to make sure the law complies with

†366 human rights. The Commissioner's recommendations should also be legally binding on local and public authorities.

It is noted that clause 6(6)(a) of the Bill does not include the Universal Declaration on Human Rights. Although this is not law anywhere, it was intended that it should be a document that placed human rights above the State; "The Declaration gives human rights precedence over the power of the state" [ER1]. This seems very reasonable given what happened in the Holocaust, the former Yugoslavia and Rwanda; what continues to happen in Darfur; and in light of the legislation outlined above. The state's power must not infringe on the inherent human rights of anyone. It would therefore be commendable if Scotland became, perhaps, the first country where the UDHR was enforceable in its domestic courts.

Clause 8 of the Bill seems to limit the Commissioner's powers of entry to prisons. It would seem better if the Commissioner were permitted to enter such premises as assisted any investigation he was carrying out; he should also have the power to compel persons to permit him entry to a place, to assist him in an investigation.

The Commissioner should have power to intervene in criminal proceedings as well as civil proceedings, under clause 11 of the Bill. He should also have power to initiate court proceedings for the purposes of a human rights case.

Mark McCabe Student, Glasgow 11 October 2005

---- [ER1] United Nations Association in Canada. (No date). 'Questions and Answers about the Universal Declaration of Human Rights' [online]. Ottawa: UNAC. Available from: http://www.unac.org/rights/question.html [Accessed 19 September 2005]

Written submission from Edward Milne

Following your fax dated 24th Nov 2005 I give my views to the six questions.

1. Yes, but with a different format, and far more power. 2. What are the existing rights for protection of human rights in Scotland. 3. I refer to number 2. 4. A commissioner without power, is a waste of any taxpayer’s money. 5. A total waste of time and money. 6. I faxed a letter dated 14th Nov 2005 about problems I had incurred over the past 17 years, when I thought my human rights were breached. As an example of why we should have a Scottish commissioner for human rights with full powers, but my submission was classed as not relevant by the convener of the

†367 committee, Pauline McNeill MSP, whom I am informed is another (lawyer). I suggest you all concentrate on number 2 on my list, build in the structures necessary to protect the Scottish people then appoint a commissioner for human rights who is responsible and accountable, to the Scottish Parliament and we the Scottish people.

Edward Milne 26 November 2005

Written submission from Alexander D. Moffat, Solicitor

I have been a principal in Scots legal practice for 35 years and am also engaged in other private sector business activities and in response to your call of 10 Oct submit

1. No. The proposed functions of the Commission are largely those of the UK & Scottish parliaments, the Scottish Law Commission, HM Inspector of Prisons & numerous other bodies, the courts and tribunals and a possibly excessively large Scots legal profession. The policy memorandum itself acknowledges that there may be duplication with the proposed UK Commission for Equality & Human Rights.

2. Probably not and it could interfere with the function of courts & tribunals in applying the law. A private litigant ought to be concerned at the proposed right of the Commissioner to intervene per Clause 11 thus prolonging & increasing expense of litigation.

4. No since it takes no account of the additional cost to public authorities of furnishing information, attending inquiries and courses, studying the Commissioner’s publications or the additional costs of litigation in which the Commissioner seeks to intervene.

If the Commission’s activities are disregarded by courts & tribunals, it may be a very expensive means of promoting one area of law. If they are taken into account to any extent it may constitute an attempt by the Executive to direct the courts how to apply the law which offends the separation of powers. The emphasis on a culture of human rights may also be inappropriate without some reference to correlative duties

AD Moffat 19 November 2005

Written submission from John Murray

With regard to the question posed for consultation. Should we establish a Human Rights Scottish Commissioner? Yes, is my reply wholeheartedly.

†368 The Executive have a positive obligation, to legislate competently, in compliance with ECHR. That compliance, should include in the regulatory authority, in the public interest of all users and suppliers of legal services within that system.

The remit should not be draft, but open and wide and exclude any irritancies what ever.

Properly legislated for, will be self financed over the long term, where wholly compliant and compatible with all fundamental freedoms applicable to all, excluding anomalies of immunities. Restore accountability according to justice etc.

John Murray 15 October 2005

Supplementary written submission from Northern Ireland Human Rights Commission (in response to Stage 1 Report)

Please find attached some additional comments from the Northern Ireland Human Rights Commission which I hope may be of some value to the Justice 1 Committee’s deliberations on the Scottish Commissioner for Human Rights Bill. They have been prepared in response to the Committee’s first Report on the Bill and are tendered in the hope that the practical experience of the Northern Ireland Commission over the past seven years may add some value to your discussion.

Concerns identified by the Committee of potential overlap with other regulatory bodies and clarity on the particular role and function of a human rights commission(er) have been challenges to this Commission also.

We have made efforts to share infrastructure arrangements with other organisations in areas where there is no possibility of compromising our independence – such as sharing IT support with the Children’s Commissioner and the Equality Commission. The statutory review procedure after two years gave us and others, an opportunity to highlight weaknesses in our powers and functions as originally designated. The tardy response by government to our Commission’s review does not diminish the intrinsic value of such a process.

I hope these comments are helpful and I am happy to discuss any aspect of our work or views at any time.

With best wishes, Yours sincerely Ms Paddy Sloan

†369 Response from the Northern Ireland Human Rights Commission to the Justice 1 Committee of the Scottish Parliament on their first Report on the Scottish Human Rights Commissioner Bill

1. Over the past six years, the Northern Ireland Human Rights Commission has followed with interest the progress of the establishment of a human rights commission for Scotland. Indeed we have followed the proposals with some envy, given the obvious and regularly stated commitment by the Scottish Parliament to the protection of human rights. We have given our views formally in the past and recently by way of a magazine article, on the detail of the proposals and are presuming to do so again, uninvited but well intended. I trust that the comments will be received in the spirit in which they are submitted, that of a shared commitment to the promotion and protection of human rights and in the light of our experience in the Northern Ireland Commission.

2. It may be of interest to the Committee in its deliberations to consider some of the practical outworkings of the genuine and understandable reservations expressed in your report.

3. There is unlikely to be a more crowded field of regulatory bodies than that which exists in Northern Ireland. This Commission has potential overlap of functions with very many bodies, including those mentioned in your report, among others – the Children’s Commissioner, the Prisons Ombudsman, the Equality Commission, the Police Ombudsman, the Victims’ Commissioner, the Office of Law Reform, the Criminal Justice Inspectorate, the Legal Services Commission, not to mention an active NGO sector and committed academics. It is however, important to acknowledge the unique and critical standing of a human rights institution as a body created by and with the authority of statute but independent from government and from all other influences, NGO, political parties, faith communities, working on the basis of internationally agreed human rights standards. While in the abstract, there appears to be confusion, in practice there is none. We have Memoranda of Understanding with most of the other bodies, which can help, but in practice it is clear who takes the lead and regular communication allows mutual support where we have common cause and respect for individual positions where appropriate.

4. For example, on international treaty monitoring reports this Commission comments on government’s reports and submits shadow reports reflecting the experience of interest groups, and encourages and facilitates NGOs to submit comments. We work with the Children’s Commissioner on the UN Convention on the Rights of the Child and with the Equality Commission on CEDAW. Without this coordinating and proactive function, the situation in Northern Ireland, often governed by different legislation than the rest of the UK, was often not included in the treaty monitoring reports which are prepared in London.

5. A one-stop-shop is difficult to envisage and could cause confusion in a way that is not the case when individual agencies can promote their own core message and functions. Similarly to combine a human rights function with a pre-existing institution would

†370 severely reduce the impact of establishing a commission and is unlikely to register in the public perception as a new and potentially valuable resource. There is a particular risk of associating human rights with maladministration claims. It has been our experience, particularly among public sector bodies feeling threatened by the Human Rights Act, that their interest lies in how to avoid litigation rather in the more positive aspect of establishing a human rights culture, or instinctive way of behaving which is compliant with human rights standards. Demystifying this concept and reducing the fears of litigation will be important roles for the commissioner.

6. The Northern Ireland Commission has worked closely with several government departments in helping to do this, and with the police. The Police Service in Northern Ireland, PSNI, has had an impressive rate of progress in mainstreaming human rights into its policies and practices. The police are sometimes considered to be over- scrutinised, (regulatory bodies include the Policing Board, the Police Ombudsman and the Oversight Commissioners, among others) but have become more open and cooperative with organizations like ourselves, and having engaged human rights advisers to evaluate their procedures, they are moving towards making human rights a priority in their decision making in a way that is not replicated in police forces elsewhere in the UK.

7. We have, for example, developed a guide for teachers and educationalists on compliance; contributed to materials for the school curriculum citizenship module; advised the prison service, following major investigations, on the regime for women in prison; investigated and secured changes to the detention of children and young people in the criminal justice system; exposed concerns about the treatment of immigration detainees; challenged the death investigation procedures in hospital – and many other similar pieces of work which have been done in cooperation with (to varying degrees) a range of public authorities.

8. There is no other body which would see this kind of work as core to their function. In some instances, due to a defect in our original governing legislation, we have had to resort to the court to gain access or cooperation, or, by taking or supporting a case, to highlight a concern. This is a vital tool in awareness raising and complements the contribution we make to human rights training in the public sector through devising materials, direct delivery and monitoring provision. It is our experience that a dedicated organization is needed to provide a consistent message which is non-threatening but has statutory authority, coming from an independent position to promote international human rights standards and ensure that they have relevance locally.

9. In Scotland, due to the particular arrangements described in the Equality Bill, there will be no obvious champion for human rights on devolved issues. This is a major gap. This Commission has identified some reservations we see in the proposed governing legislation, which we are happy to discuss in more detail should that be considered useful. However the Bill has a lot to commend it and it would be overly radical to abandon the concept at this stage. Throughout the world national institutions are being created to protect citizens and monitor state actions, particularly at a time when counter-

†371 terrorism measures are increasingly eroding civil liberties. There need be no concerns about interfering with the sovereignty of parliament, at UK or national level. The legislature retains ultimate responsibility. Social and economic rights cannot dictate budget allocation. There is however a strong need for guidance from the principles of international standards, which has been shown to work well in countries around the world where economic and social rights are incorporated into their constitution or bill of rights. There is little to fear from the Human Rights Act in this respect.

10. Increasing awareness of the rights of others and of the constant need to balance those positions leads to dialogue and increased understanding of difference. It is a slow process, needing illustration by local examples which bring to life the application of international standards. A human rights commission can and should be able to provide those examples by supporting cases and challenging systemic abuses to help promote an accurate understanding of what is meant by human rights. No agency with other duties will have the breadth of focus to pursue such examples, to research and investigate, go to court if necessary and engage the media attention critical to making an impact on the wider public.

11. Good governance is intrinsically linked to the promotion and protection of human rights. Many of the public authorities are now coming to accept this in their work and are devising, in consultation with us to varying degrees, a human rights impact assessment tool to gauge their compliance with the Human Rights Act, not as means solely of avoiding litigation, but because they are discovering that it works. Care staff want guidance on restraint doctors, nurses and families don’t want police questioning straight after a patient has died prison staff don’t want to have to deal with people with mental illness; policemen don’t want to use baton rounds. This requires attention to policies and legislation however and is not dealt with by individual claims of maladministration. The Prisons Ombudsman deals with individual complaints from prisoners and we look at systemic human rights concerns relating to the regime; the Police Ombudsman deals with complaints against individual officers and we look at their policies and human rights training; the Commission has a particular and complementary role to all the various regulatory bodies and an oversight of the totality of provision relative to international human rights standards.

12. In the autumn, we will be subject to a Landscape Review by government. This essentially looks at whether or not we are needed and what contribution we make. It will be important to be able to justify our existence by example and to be confident of our credibility, locally and internationally. It provides us with an opportunity both to review our own standing and to focus our resources on the particular added value of a national institution. It may be beneficial for the Scottish Commissioner Bill to include a statutory review date, which, if given appropriate attention, could provide an opportunity to identify any shortcomings or anomalies in the legislation which become evident once the organization is operational. Such reviews do have to be undertaken with some commitment however. Despite a two year statutory requirement to review our powers and effectiveness, seven years after establishment we still await the legislative amendments identified to secure the powers necessary to operate to full effect. The

†372 principle however of such a statutory review process is a sound one and worth considering in the Scottish Bill.

13. The extensive work undertaken to date on developing the Scottish Commissioner for Human Rights Bill and the commitment shown to the promotion and protection of human rights in Scotland should ensure the establishment of an effective organisation. The Northern Ireland Commission is happy to share any further information that may, at any stage, be deemed useful.

Written submission from the Royal Society of Edinburgh

1. The Royal Society of Edinburgh (RSE) is pleased to respond to the Scottish Parliament Justice Committee consultation on the Scottish Commissioner for Human Rights Bill. The General Secretary, Professor Gavin McCrone, and the Policy Officer, Dr Marc Rands have compiled this response, with the assistance of a number of Fellows with expertise in this area.

Do you think a Scottish Commissioner for Human Rights should be established?

2. The RSE believes there is a sufficient case made for Scotland to have a Scottish Commissioner for Human Rights. Implementation of the Convention on Human Rights will require more than the procedural safeguards provided by the Parliament and the judiciary, because many human rights issues will not arise as matters that will come directly within the specific jurisdiction of these bodies. In addition, the aspiration that respect for human rights will become a central part of the conduct of all bodies responsible for their endorsement will be more likely to be achieved where the focus is on prevention of breach rather than on remedying existing breaches.

3. Much will turn on the personality of the Commissioner. At present, all that is known is that the Scottish Commissioner is to be appointed on the nomination of the Scottish Parliament: clause 1(2). The explanatory notes refer at p15, para 110, to advertising costs. But we are not given any information about the qualifications that the holder of this office should have.

What would such a body add to existing mechanisms for protecting human rights in Scotland?

4. While other bodies exist which address some aspects of human rights, a lack of cohesion may result from this fragmentation and, therefore, a body whose sole concern is with human rights might best serve these issues. In addition, given the differences between Scotland and the rest of the UK, which underlay the arguments for devolution, it must be conceded that there are legal, educational and social characteristics in Scotland which may require separate and specialist consideration.

†373 5. One area of value proposed will be giving the Commissioner power to intervene in proceedings before a court: clause 11. A weakness of the current system of public law in Scotland is the inability of bodies with practical experience in human rights issues to intervene in proceedings in the Scottish courts. The English courts, especially at the appellate level, are much more liberal in giving permission to such parties to intervene. Cases have occurred where a party who would clearly be given leave in England, has been refused leave in Scotland because of the Scottish rule that an intervener has to demonstrate a title to do this as well as an interest in the outcome of the case- a test which it is almost impossible for these bodies to satisfy.

How should the Commissioner be accountable?

6. The Human Rights Commission should be accountable to the Scottish Parliament. It is fundamental, however, that the Commissioner should be independent of the Scottish Parliament and Executive. This is particularly important if the Commission is to monitor Scotland's compliance with international instruments.

7. At present, there is no statement on the face of the Bill that the Commissioner is an independent officer and is not subject to direction or control by the Scottish Ministers. We suggest that, at the very least, a declaration of the Commissioner’s independence should be in the Bill.

Do you have any views on the proposed remit for the Commissioner?

8. The suggestion that the remit be restricted to civil proceedings only is too narrow. Most of the human rights issues that have come to the attention of the courts in Scotland have been in the context of devolution-issues as defined in para 1 of Schedule 6 to the Scotland Act 1998. They have occurred for the most part in criminal cases and from time to time the issues raised are quite far reaching. While we would not extend the Commissioner’s power to intervene to the trial courts, there would be an advantage in giving the Commissioner the power to seek to intervene in criminal cases at the appellate level in the high Court of Justiciary and especially in the Judicial Council of the Privy Council (JCPC). Jurisdiction in devolution matters, both civil and criminal, is to be transferred to the UK Supreme Court when it is set up, probably in October 2008. Unless there is power to do this the Scottish Commissioner will be unable to even to seek leave to intervene, although the Northern Irish counterpart can do so. And the JCPC/Supreme Court will think it odd if the Commissioner’s power of intervention in civil devolution cases is not also available in criminal devolution cases.

Additional Information

9. In responding to this consultation the Society would like to draw attention to the following Royal Society of Edinburgh publications which are of relevance to this subject: Protecting our Rights: A Human Rights Commission for Scotland and Preparing an Animal Health and Welfare Strategy for Great Britain (July 2001); The Public Appointments (Parliamentary Approval)(Scotland) Bill (November 2001) and The

†374 Scottish Human Rights Commission (July 2003). Copies of this response and of the above publications are available from the Policy Officer, Dr Marc Rands (email: [email protected]) or from the RSE web site: www.royalsoced.org.uk.

Dr Marc Rands 21 November 2005

Written submission from Save the Children

1. Introduction

1.1 Save the Children is an international children’s rights organisation working in Scotland, the UK and over 70 countries around the world to achieve a better world for children. Save the Children’s work is centred on the commitment to making a reality of children’s human rights and is underpinned by the principles of the UN Convention on the Rights of the Child (UNCRC).

Key points

• Save the Children supports the proposals to establish a SCHR who has regard for the human rights of children, young people and adults. • The SCHR should have a formal right to consider and report on non-devolved matters that affect Scotland. • Roles and relationships between the SCHR and other bodies such as SCCYP and CEHR must be explicit. It is important that the public are clear about who they should contact for a particular issue. • Save the Children supports powers of entry, inspection and interview to places of detention. • Consideration should be given to amending the Bill to include enforcement powers for the SCHR following investigation and powers to investigate individual cases.

2. Response

Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

2.1 Save the Children supports and welcomes the proposals for the establishment of a Scottish Commissioner for Human Rights (SCHR). As an international children’s human rights organisation, Save the Children supports mechanisms which promote human rights and believes that a human rights culture is to the benefit of all. It is believed that the SCHR will play a leading role in ensuring human rights are enshrined for all Scottish citizens.

†375 2.2 Save the Children believes that children and young people should be included in the remit for the SCHR. The SCHR will have to have special regard for the European Convention on Human Rights (ECHR). This instrument applies equally to children, young people and adults and is the only international human rights instrument that is enforceable through Scottish courts. However acknowledgement should be made of the lead role of Scotland’s Commissioner for Children and Young People (SCCYP) in supporting the specific rights and needs of children and young people. Children and young people under the age of 18 are a unique group with their own rights and interests. Without the right to vote they have no real political power, their voices are generally not heard and as dependants of adults they have little economic power. Children and young people are also particularly vulnerable to abuse by adults and require protection.

What would such a body add to existing mechanisms for protecting human rights in Scotland?

2.3 Save the Children hopes that the creation of a SCHR will create a better understanding and awareness of human rights, and at the same time assist people in Scotland to assert their rights more effectively. Save the Children believes that the role and function of the SCHR will complement that of SCCYP and other bodies. There is therefore the real potential to promote, champion and safeguard the human rights of all those who live in Scotland.

2.4 It is essential that Scotland has a distinctive Commissioner to reflect the different legal framework in Scotland. Given that the SCHR will be independent and accountable only to the Scottish Parliament the Commissioner will undertake a significant role in ensuring public authorities in Scotland respect human rights.

How should the Commissioner be accountable?

2.5 Save the Children supports the position of accountability set out in the Bill. That is that the SCHR will be accountable to the Scottish Parliament through annual and ad hoc reporting for spending public funds and the manner in which he/she carries out the statutory functions. This position equates with other Scottish Commissioner’s such as the SCCYP. As well as annual reporting, Save the Children supports the Scottish Human Rights Centre’s suggestion that to ensure proper scrutiny of the SCHR work, Parliament debates the annual report. Save the Children recommends wide public dissemination of the Commissioner’s annual and ad hoc reports.

Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

2.6 The SCHR must be properly resourced to promote human rights in Scotland. The Commissioner will require adequate staff to support his/her work and funds to promote awareness of human rights in Scotland.

†376 Do you have any views on the proposed remit for the Commissioner?

2.7 Save the Children welcomes the general remit of the SCHR to promote human rights and the duty to monitor law, policy and practice. The Bill specifies that the SCHR’s remit will be restricted to devolved issues, while the proposed UK wide Commission for Equality and Human Rights (CEHR) remit will include reserved issues. It should be noted that not all issues fit easily into either one of these categories.

2.8 Save the Children agrees that the remit of the Commissioner should extend to the full range of international human rights instruments. Given that the ECHR and Human Rights Act are enforceable in Scottish courts it is right that the SCHR should have special regard to these instruments. It should be acknowledged however that SCCYP has the leading role with regards to the UN Convention on the Rights of the Child (UNCRC).

Power to co-operate etc. with others (s.14)

2.9 Save the Children supports the drawing up of a memorandum of understanding with SCCYP to clarify roles and duties with respect to the rights of children and young people and avoid duplication.

2.10 Similarly the relationship between the SCHR and CEHR must be clear, particularly as the CEHR will operate in Scotland on equality issues. It is important that the public are clear about who they should contact for a particular issue.

Information, guidance and education (s.4)

2.11 Save the Children welcomes the powers of the SCHR to provide information, guidance and education on human rights. This is one of the many functions of the SCHR that needs to take into account the role of other bodies such as SCCYP to avoid duplication.

Places of detention: powers of entry, inspection and interview (s.8)

2.12 Save the Children welcomes and supports the widening of access to information powers to include the right of access to premises in order to secure evidence about possible human rights violations for inquiry purposes.

Protecting human rights

2.13 The work of the SCHR should be underpinned by the United Nations Paris Principles (1993) which outlines the competencies of human rights institutions. Save the Children is disappointed that the Bill does not include powers to protect human rights, in line with these principles.

†377 2.14 It is disappointing that the Bill does not include enforcement powers for the Commissioner following investigation. Without this the role of the Commissioner is weaker. It is recognised that it is more appropriate that bodies subject to an investigation should be responsible for initiating follow up action after the publication of findings rather than have enforcement powers applied. Save the Children would therefore expect enforcement powers to be used only in certain situations where human rights are most compromised and at risk, and/ or where no action was being taken by the bodies investigated. It is therefore of fundamental importance for the effectiveness of the SCHR that this power exists.

2.15 Additionally it is disappointing that the Bill, as introduced, does not allow the SCHR to take on individual cases and therefore challenge individual breaches of rights. This is a fundamental power that should be provided to the SCHR. The expectation would be that this would be necessary only where existing mechanisms are inadequate and there is no other appropriate organisation to take this forward. A balance between upholding a general principle and the taking forward of individual complaints would need to be found. The implications this measure would have on budgets would also have to be considered.

2.16 Save the Children recommends that consideration is given to amending the Bill to include enforcement powers for the SCHR following investigation and powers to investigate individual cases. There should be a process for reviewing the functions and role of the SCHR once it is established.

Claire Telfer Policy and Parliamentary Officer 18 November 2005

Written submission from Scottish Children’s Reporter Administration

SCRA is pleased to respond to the Scottish Human Rights Commissioner Bill. We have the following specific comments to make.

1. SCRA notes the exemption of children’s hearing court proceedings from intervention by the SHRC in terms of s11 of the Bill.

2. SCRA understands that this exemption may be linked directly to the exemption of criminal proceedings from such intervention.

3. Children’s hearing court proceedings are however civil proceedings.

“Offence” grounds in terms of s52(2)(i) of the Children (S) Act 1995 represent only one of 9 grounds for referral. “Offence” grounds in any event are also civil proceedings, as was clearly stated by the Lord President in S v Miller 2001 SLT 531 Para. 19 “ children’s

†378 hearing proceedings and the related proceedings before the sheriff…..have always been regarded as civil in character, even where they concern a ground of referral under Section 52(2)(i)” ).

4. The exemption in s11(1) of the SCHR Bill in relation to children’s hearing court proceedings may therefore be misunderstood.

5. The policy position behind the reluctance to introduce the SCHR into criminal proceedings may relate to the fear that that intervention might disrupt the checks and balances devised over time through legislation and common law to ensure a fair trial for the accused.

6. In children’s hearing court proceedings the primary focus is on the welfare of the child. This distinguishes these proceedings from criminal matters. The system designed to secure the child’s welfare would not or could not be threatened by the inclusion of our court proceedings in the ambit of s11 of the Bill.

S11(8)

7. Despite the terms of s11(1), s11(8) purports to allow intervention by the SCHR in any proceedings before any court or tribunal “under an enactment or in accordance with the practice of the court or tribunal”. It may be understood that the terms of s11(1) and its specific exemption of children’s hearing court proceedings would not prevent the intervention of the SHRC in those proceedings where such “enactment…or practice” provided authority for it.

8. It is possible that Rule 3.49 of the Act of Sederunt (Child Care & Maintenance Rules) 1997 represents such authority. ( “.. the sheriff on the motion of any party or on his own motion may continue the hearing in order to allow time for further enquiry into any application.. for any .. necessary cause, for such reasonable time as he may in the circumstances consider necessary”). Rule 3.54(1)(e) in relation to appeals, enabling the sheriff to authorise intimation of an appeal on “any .. person [s/he] thinks necessary” may provide a similar route in for the SCHR for the purposes of making a submission on any issue arising.

9. SCRA has concern however that the terms of s11 will not be sufficiently clear to any court that that is the case; that, rather, s11(1) will appear conclusive of the fact that there is no scope for the SHRC’s intervention in these proceedings, and that s11(8) will in effect be trumped by the strict terms of s11(1).

S11(1) & s11(8)

10. SCRA has additional concerns that the terms of s11(8) are in fact disapplied by s11(1); that on one construction s11(8) & s11(1) taken together produce the effect that s11(8) means “without prejudice to other proceedings, but not children’s hearing court proceedings”.

†379 11. SCRA would therefore propose that s11(8) be transferred out of s11 and placed in a separate section of it’s own to avoid the contamination of s11(1).

SCHR as expert witness

12. Finally, if SCRA’s recommendation to remove the exemption in s11(1) is not accepted, SCRA believe that it would be helpful to draft an additional “ for the avoidance of doubt” section specifying that the terms of s11 do not prohibit the use of the SCHR as an expert witness in any proceedings.

By whatever means, the policy objective of allowing the courts access to the SCHR’s expertise should apply to children’s hearing court cases as to any other civil proceedings.

Scottish Children’s Reporter Administration November 2005

Written submission from Scottish Council of Jewish Communities

Q1. Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

Q2. What would such a body add to existing mechanisms for protecting human rights in Scotland?

The Scottish Council of Jewish Communities supports the establishment of the post of Scottish Commissioner for Human Rights.

The importance of Human Rights and in particular ECHR compliance, is enshrined in the Scotland Act and this strong message would be emphasised by the establishment of a Commissioner for Human Rights. Legislation is not merely about criminalising particular activities;it is also a means by which a society indicates its standards and ideals, and signposts its aspirations. The establishment of a Scottish Commissioner for Human Rights would be a clear statement of the Scottish Executive’s and the Scottish Parliament’s intentions in this regard.

Q3. How should the Commissioner be accountable?

It is important that there should be complete transparency with regard to the Commissioner’s activities. We believe that this will be partially achieved by the proposed reporting procedures, namely the requirement to publish an annual report, which is also laid before the Parliament and which may be the subject of debate. However, in order to achieve full transparency we suggest that there should be a requirement for the Commissioner to respond to questioning by MSPs in open

†380 Committee. In our view this could provide evidence not only of the activities undertaken by the Commissioner, but also of the manner in which those activities had been carried out.

Q4. Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

We do not have a view as to an appropriate figure, but wish to emphasise the need for the Scottish Commissioner for Human Rights to receive adequate funding if he or she is to be able to act effectively.

Q5. What lessons might be learned from other Commissioners/Ombudsmen set up under the auspices of the Scottish Parliament/Scottish Executive?

We do not have direct experience of other Commissioners or Ombudsmen set up under the auspices of the Scottish Parliament or Executive. We do, however, suggest that it would be preferable to establish a Commission rather than a Commissioner. Each of the three existing UK Equality Commissions has a committee of Commissioners with a supporting staff and we suggest that this structure is better able to reflect a range of interests than a single Commissioner is able to do. The Policy Memorandum points out (section 8) that all previous discussion and consultation has referred to the creation of a Human Rights Commission, and we would prefer the Bill to revert to this original intention.

Do you have any views on the proposed remit for the Commissioner?

We believe that the establishment of two new commissions could lead to both duplication and omission. To avoid dispute, the remit of the Scottish Commissioner for Human Rights and that of the Commission for Equalities and Human Rights should be defined in terms of the responsibilities of the Scottish and UK Parliaments with regard to devolved and reserved issues. We agree that there is a “need to ensure that the CEHR and SCHR will work closely together” (Policy Memorandum section 11) and are concerned that there is no reference to the Scottish Commissioner for Human Rights entering into a memorandum of understanding parallel to that included in the CEHR proposals.

We are also concerned that the proposed Scottish Commissioner will not have any remit for Equalities. In our view there is a potential for conflict between Equalities and Human Rights (as, for example, when an individual person believes his/her rights are being overridden by the rights of the group) and we are particularly concerned that this conflict would be between reserved (Equalities) and devolved (Human Rights) issues, resulting in possible conflict between the CEHR and the Scottish Commissioner for Human Rights.

We expect that the CEHR would have a remit in settling such conflicts, and suggest that this should also be the case for the Scottish Commissioner. Although Equalities are

†381 reserved, the encouragement of Equalities is devolved, and it would, therefore, be appropriate for the Bill to establish a Scottish Commissioner for Equalities and Human Rights rather than for Human Rights alone.

Summary

The Scottish Council of Jewish Communities is in agreement with the establishment of a Scottish Commissioner for Human Rights, and supports the intention thus indicated to further enshrine Human Rights in the fabric of Scottish Society. We would, however, caution that the Commissioner’s relationship with the CEHR should be clearly laid out in advance of either body being set up in order to avoid conflict between them and confusion as to the remit of each, to ensure that there is no unnecessary duplication of activities and to prevent the possibility that some important areas might slip through the net entirely.

Note: The Scottish Council of Jewish Communities is the representative body of all the Jewish communities in Scotland comprising Glasgow, Edinburgh, Aberdeen and Dundee as well as the more loosely linked groups of the Jewish Network of Argyll and the Highlands, and of students studying in Scottish Universities and Colleges.

Scottish Council of Jewish Communities 23 November 2005

Written submission from the Scottish Drugs Enforcement Agency

I refer to your letter and enclosures of 10 October 2005 relative to the above. In this regard, having considered the content of the Scottish Commissioner for Human Rights Bill, I offer the following comments for consideration.

For reference purposes, I have outlined the questions on which the committee have sought comment followed by my response as Director of the Scottish Drug Enforcement Agency (SDEA).

Q1. Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

A1. The SDEA fully supports the establishment of the post of Scottish Commissioner for Human Rights (SCHR). A SCHR would be well placed to provide advice and guidance to Scottish Public Authorities (including the SDEA) on a range of Human Rights issues, and in addition would significantly increase public awareness of such matters.

Q2. What would such a body add to existing mechanisms for protecting human rights in Scotland?

†382 A2. The SCHR will be legislated to monitor the law of Scotland and the policies and practices of Scottish Public Authorities. This will allow the Commissioner to review Scottish legislation and public authority procedures thus ensuring that they are compatible with Convention rights, and consequently make such recommendations as is deemed appropriate.

Q3. How should the Commissioner be accountable?

A3. To reinforce public confidence in the SCHR, the Commissioner should maintain independence from Scottish Ministers and be accountable to the Scottish Parliament. The SCHR should decide which issues are investigated and reported upon with any such decisions based upon a public interest test and importantly, such decisions should be made without external control or direction.

Q4. Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

A4. No comment offered.

Q5. What lessons might be learned from other Commissioners / Ombudsmen set up under the auspices of the Scottish Parliament / Scottish Executive?

A5. The establishment, duties and functions of Commissioners / Ombudsmen should be widely publicised to ensure that the public are aware of their existence, and any guidance / information that is available. In addition, there will undoubtedly be some crossover between the work of the SCHR and other Commissioners / Ombudsmen. In order to ensure that clear and consistent guidance is provided to Scottish Public Authorities, it is suggested that relationships between Commissioners / Ombudsmen is managed through Memoranda of Understanding.

Q6. Do you have any views on the proposed remit for the Commissioner?

A6. The proposed remit of the SCHR appears to be both relevant and proportionate to the objectives it seeks to achieve.

Graeme Pearson Director 16 November 2005

Written submission from Scottish Enterprise

As an economic development agency, we do not feel best placed to answer detailed questions on the scope of the Bill.

†383 We do however, fully support UK law on human rights and welcome the establishment of a Scottish Commissioner for Human Rights (SCHR). In particular, we are pleased to learn of the Commissioner's proposed remit for advising Scottish (public bodies on the complexities of human rights law. This will be of benefit to us.

We also understand that a new Commission for Equality and Human Rights is likely to be established which will take over responsibility for the existing work of the Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission. We would encourage the Committee to uphold the assurances given in the explanatory notes relating to the complementarity of the roles of this new body and the SCHR. This would reduce any possible confusion amongst the Scottish business community.

Charlie Woods, Acting Chief Executive 18 October 2005

Written submission from Scottish Legal Aid Board

Introduction The Scottish Legal Aid Board (“the Board”) welcomes the opportunity to respond to the Justice 1 Committee’s invitation to submit evidence regarding the Bill. The Board’s response is limited to legal aid issues arising from the Bill.

Response The Board notes the provisions of Clause 10 of the Bill relating to confidentiality of information. However, the Board is concerned that the issues it raised in its response to the Consultation in 2003 have not been given effect to in this Bill. The Board is prohibited by Section 34 of the Legal Aid (Scotland) Act 1986 from disclosing information without the consent of the person who furnished it. Officers of the Board who provide information in contravention of Section 34 are guilty of a summary criminal offence. The requirement in Clause 7 to provide the Commissioner with evidence, documents or other information places the Board and its staff in the invidious position that failure to comply with the Bill will be treated as a contempt of court, but in so doing, they would commit a criminal offence under the Legal Aid (Scotland) Act 1986. The Board considers this Bill must amend Section 34 to allow disclosure to the Commissioner without fear of committing an offence. The Board’s concerns regarding Section 34 are real and not hypothetical. The Board raised similar concerns during the passage of the Freedom of Information Bill, yet no amendment was made to Section 34. However, Section 34 was amended by the Scottish Public Services Ombudsman Act 2002, to allow disclosure to the Ombudsman.

Furthermore, the Board still requires clarification as to the uses to which information provided to it in confidence would be put, including the likelihood of onward disclosure to those who would not otherwise be entitled to see the information. That information

†384 could include financial information provided by an applicant for legal aid, statements and expert reports supporting an application for civil legal aid, or the grounds for a defence to a criminal prosecution.

The Board also previously pointed out that it was unclear from the Consultation whether additional costs would be created for assisted persons and public authorities if the Commissioner intervened in Court of Session proceedings. No clarification has ever been provided, and the Board is concerned that the power of the Commissioner to intervene in civil proceedings contained within Clause 11 has the potential for creating additional costs to assisted persons, the Scottish Legal Aid Fund and other authorities if proceedings become lengthier and more complex as a result of such intervention. The Board also notes that the Financial Memorandum to this Bill makes no mention of any cost implications arising from such intervention.

The Board is happy to provide the Justice 1 Committee with any further information it may require.

Philip Shearer Scottish Legal Aid Board 7 November 2005

Written submission from the Scottish Parliament Audit Committee

Thank- you for your letter of 11 October 2005 to the Convener of the Audit Committee seeking views in relation to the Justice 1 Committee’s consideration of the Scottish Commissioner for Human Rights Bill. The Convener has asked me to reply on his behalf.

Given the significant differences in the roles and function of the Auditor General for Scotland and the proposed Human Rights Commissioner it may not be helpful to draw comparisons between the two posts and accordingly the Convener offers no comment on the Bill.

Shelagh McKinlay, Clerk to the Audit Committee 17 November 2005

Written submission from the Scottish Parliament Education Committee

Thank you for your letter of 11 October 2005 on behalf of the Justice 1 Committee regarding the Scottish Commissioner for Human Rights Bill. You specifically sought the Education Committee’s views on the relationship between it and the Scottish Commissioner for Children and Young People.

†385 The Commissioner’s five year appointment began in April 2004. At its meeting on 29 September 2004, the Education Committee agreed a simple framework for its interactions with the Commissioner for Children and Young People in Scotland. The key elements of the framework are:

1. The Commissioner for Children and Young People (Scotland) Act 2003 requires the Commissioner to lay an annual report before the Parliament. It is proposed that once the annual report is laid, it is placed on the next available Committee agenda. If the Committee wishes to pursue any issues arising from the annual report, it will invite the Commissioner to a subsequent meeting.

2. The Commissioner is also required to lay reports of investigations before the Parliament and may lay other reports. The Convener may place such reports on a subsequent Committee agenda.

3. During the course of the year, the Commissioner can raise issues with the Convener of the Committee which may then be discussed by the Committee if required.

4. The Clerk to the Committee will draw the Commissioner’s attention to calls for evidence that the Committee make and the Committee may seek the Commissioner’s advice and views at any point.

5. The Clerk to the Committee and other parliamentary staff and the Commissioner’s staff will share information about ongoing work.

The Commissioner has not yet laid her 2004-05 annual report before Parliament although I understand this is imminent. The Committee will formally consider the report at the first appropriate point in its work programme. Until this has happened, it is a difficult to comment on the effectiveness of this accountability framework. To date, the Commissioner has not laid any investigatory reports before Parliament. The Committee has hosted two informal seminars (one in autumn 2004 and one on 26 October 2005) given by the Commissioner which have been attended by a wide range of stakeholders. All calls for written evidence on either bills or inquiries are highlighted by the clerks to the Commissioner’s office and there is informal exchange of information between clerks and the Commissioner’s staff.

Iain Smith, Convener 16 November 2005

Written submission from the Scottish Parliament Equal Opportunities Committee

The Equal Opportunities Committee considered the Equality Bill at its meeting on 13 September 2005 and took evidence from the three equality commissions, the Scottish Human Rights Centre, the Equality Network and the Scottish Inter Faith Council.

†386 During that evidence session, a number of issues were raised in connection with the proposed Scottish Commissioner for Human Rights. In particular, concerns were raised about the proposed powers of the Commissioner and whether the Commissioner will have the same level of powers in relation to devolved human rights issues as the CEHR will have for reserved issues.

I am writing to ask the Justice 1 Committee to consider the issues raised in evidence to the Equal Opportunities Committee about the Scottish Commissioner for Human Rights. To assist the Justice 1 Committee, I attach a copy of the letter I sent to the Minister for Communities about the Equality Bill.

Cathy Peattie MSP Convener Equal Opportunities Committee 20 October 2005

LETTER FROM CATHY PEATTIE MSP TO MALCOLM CHISHOLM MSP, MINISTER FOR COMMUNITIES

Equality Bill

As you may be aware, the Equal Opportunities Committee considered the Equality Bill at its meeting on 13 September 2005 and took evidence from the three equality commissions, the Scottish Human Rights Centre, the Equality Network and the Scottish Inter Faith Council. A copy of the Official Report of the meeting is attached for your information.

During that evidence session, a number of issues were raised which the Committee agreed I should bring to your attention in order that they may be taken into account during the progress of the Equality Bill and the establishment of the Commission for Equality and Human Rights (CEHR).

Scotland Committee The Committee heard concerns regarding the fact that there would be only one commissioner for Scotland and supports the suggestion, made in evidence, that an understanding of devolution should be a requirement for all the commissioners in order to ensure effective coverage across both reserved and devolved issues.

The Committee also accepts that there is a need for the Scotland Committee to function in Scotland in the same manner as the CEHR will function across Great Britain and this will mean that the same range of skills and experience should be expected of the members of the Scotland Committee as are required of the CEHR commissioners.

Concerns were also expressed at the fact that the grant-giving powers under clause 18 and the clause 21 power in relation to communities were not delegated to the Scotland Committee. The Committee agrees with the evidence received that not having the

†387 grant-giving powers delegated creates an inconsistency given that the other promotional powers are delegated.

In the case of the clause 21 power, given that criminal law in Scotland is devolved and hate crime law in Scotland is different from hate crime law in England, it makes sense that this power is delegated to the Scotland Committee. This is particularly important as the relevant expertise in relation to criminal law and criminal justice in Scotland is in Scotland.

Disability Committee The importance of effective liaison between the Scotland Committee and the Disability Committee was recognised in evidence. In order to assist this liaison, the Committee accepts that it would be helpful if a member of the Scotland Committee sat on the Disability Committee and a member of the Disability Committee sat on the Scotland Committee.

Budget The Committee is concerned, based on the evidence it has heard, that the overall annual budget for the CEHR is likely to be insufficient and that this will have an adverse impact on the funding available for the work of the Scotland Committee.

Codes of Practice While generally content with the requirement for consultation with Scottish Ministers in relation to the production of codes of practice, the Committee wishes to stress the need for effective procedures to be put in place to ensure that adequate liaison takes place to deliver accuracy for codes of practice relating to Scotland. There is a clear need for the close involvement of the Scotland Committee in the development of such codes.

Annual Report The Committee recommends that the annual report of the CEHR, which the Bill requires to be laid before the Scottish Parliament, should be the subject of a parliamentary debate.

Human Rights The Committee agrees that it is crucial for the proposed Scottish Commission for Human Rights (SCHR), when it is established, to have the same level of powers in relation to devolved human rights issues as the CEHR will for reserved issues. In addition, the two organisations must work closely together, particularly with regard to the provision of information to the public on their respective roles.

To facilitate public access to the functions of the SCHR and the CEHR, it would be beneficial if there were a single point of contact. Clearly, this would be made easier if the offices of the two commissions in Scotland were co-located.

†388 The Committee also feels that, for situations where the CEHR deals with devolved human rights issues with the consent of the SCHR, there is a need for a mechanism to be developed to allow the CEHR to report on these actions.

Gender Duties The Committee accepts the concerns raised in evidence that the elimination of harassment is not specified in the gender equality duty in the Bill. The Committee agrees with the Equal Opportunities Commission that this should be included in the duty that is placed on public authorities. In addition, the Bill should include provision to deal more clearly with the pay gap, which continues to be an issue. This should require both public bodies to deal with their own pay gap issues and, by extension, the organisations they contract to carry out work on their behalf.

The Committee also concurs with the call from the Equal Opportunities Commission for the duty be extended to cover transgender.

Extension of Coverage The Committee feels strongly that the extension of anti-discrimination provisions to goods, facilities and services which the Bill affords to the legislation on religion and belief should also be extended to sexual orientation legislation and to transgender people.

Transitional Arrangements The evidence we have heard has stressed the need for the CEHR shadow body to be up and running as soon as possible and for the Scottish elements of that body to be established right from the start to ensure that there is Scottish involvement in the early decision-making process.

When the CEHR is formally established, it will be equally important for the Scotland Committee to be appointed as soon as possible.

There is also an urgent need for effective capacity building for the new strands and the Committee would welcome the provision of Executive funding to support this.

Equality Strands and the Scotland Act 1998 The Committee agrees that there is a need, emphasised by the witnesses, for the promotional powers of the Scotland Committee not to be limited by the 6 equality strands for which there will be legislation, although it recognises that they place a limit on the enforcement powers of the CEHR. Concerns were, however, expressed regarding whether funding would be available for work in Scotland outwith the 6 strands.

Disability Committee The Disability Rights Commission expressed concern that the current wording of the Bill restricts the Secretary of State’s ability to continue the Disability Committee, should that be the recommendation from the review of the activities of the Committee, which the Bill requires to be carried out after five years of operation.

†389 Hierarchy of Equalities The Committee heard concerns regarding the provision in clause 11(4) that the Commission should “have particular regard to the importance of exercising the powers … in relation to communities defined by reference to race, religion or belief.” The Committee is of the view that this exacerbates the already existing hierarchy of equality legislation and should not be on the face of the bill.

Promotion of well-being The witnesses expressed concern at the inclusion in the Bill of the exemption at clause 54(4)(i), in relation to the grounds of religion or belief, for English and Welsh local authorities in exercising their power to promote well-being. It was not clear to witnesses why this had been included and they did not wish the same exemption to be included for Scotland. The Committee would welcome an explanation for this exemption.

Liaison between GB Government Departments and the Scottish Executive The Committee wishes to emphasise that it is essential that the Scottish Executive is proactive in ensuring that Scottish interests are understood and covered effectively in the work of the relevant GB government departments, and that it is equally important that GB government departments are proactive in understanding their role in relation to Scotland.

I would urge the Scottish Executive not only to take full account in its own work of the issues the Committee has raised regarding the Equality Bill and the CEHR, but also to take these issues forward with relevant counterparts in the UK government as appropriate.

Equal Opportunities Committee 6 October 2005

Written submission from the Scottish Parliament Health Committee

Having discussed this with the Health Committee I can advise you that historically we have had limited contact with the Public Services Ombudsman but on those few occasions when we have heard from the Ombudsman we have found her approach to the Committee and evidence to be helpful.

There is nothing specific to comment upon in relation to lessons which should be learned from the way that organisation is structured and reports to the Parliament.

Roseanna Cunningham , Convener 15 November 2005

†390 Written submission from the Scottish Parliament Procedures Committee

Thank you for your letter of 12 October inviting views from the Procedures Committee in relation to the above Bill. The Committee had an initial discussion on this matter at its meeting on 25 October and agreed this response at its last meeting on 8 November.

As you may already be aware, the Committee is currently conducting an inquiry into the procedures surrounding the re-appointment and removal of Crown appointees. We expect to conclude this inquiry by the end of the year and will be making a number of recommendations in our report including the following:

• that the Parliament adopts a non-competitive re-appointment procedure incorporating a formal interview of the current post-holder;

• that the Scottish Parliamentary Corporate Body (SPCB) should undertake the re- appointment interview together with an independent assessor;

• that standing orders should not define the special circumstances under which a post-holder could be re-appointed for a third term;

• that even where third term appointments are provided for in the legislation they should be discouraged; and

• that the Rules should not replicate statutory provisions on the removal from office of Crown appointees and equivalent post-holders.

As you will appreciate, any proposals adopted by the Parliament will apply to the Scottish Commissioner for Human Rights as this will also be a Crown appointment. We have looked through the draft Bill as it stands and there appears to be nothing that would be incompatible with the proposals above.

During the course of our inquiry a further issue arose. The Scottish Public Services Ombudsman Act 2002 allows the Parliament to give the Ombudsman direction as to the form and content of his or her Annual Report and a similar provision has been included as section 12(3) of the Scottish Commissioner for Human Rights (SCHR) Bill. There is of course no obligation on the Parliament to issue directions under this provision.

The Procedures Committee was asked to consider whether some Parliamentary mechanism was required to facilitate the issuing of such directions. However during our discussion, the wider issue of why the provision was included in the Act (and subsequently in the SCHR Bill) arose. A number of our Committee members were concerned that any use of this power could - directly or indirectly - be seen to impact on the independence of the office. This view was shared by the current Ombudsman, Professor Alice Brown, who gave evidence to the Committee on 27 September. We also noted that similar provision was not included in the Acts which established the

†391 Commissioner for Children and Young People, the Freedom of Information Commissioner and the Commissioner for Public Appointments.

We wrote to the Minister for Finance and Public Services seeking clarification on this issue and a copy of the exchange of correspondence is attached for your information.

While we fully accept that there was no intention to limit or compromise the independence of the Ombudsman in any way by the inclusion of this provision, we remain unconvinced of its value. There are many ways in which Members can engage with the Ombudsman and it seems to us that the use of a direction based on a motion of the Parliament is rather a blunt and heavy handed option. We therefore plan to recommend in our report that section 17(3) of the Scottish Public Services Ombudsman Act 2002 be removed at a suitable opportunity and that, in the meantime, the Parliament refrain from making use of the power available to it. In light of this you may wish to consider whether it is appropriate for section 12(3) of the Scottish Commissioner for Human Rights Bill to be retained.

I will ensure that a copy of our final report is forwarded to you once it is available. In the meantime, I trust that this letter is of some assistance in your inquiry.

Donald Gorrie MSP, Convener Procedures Committee 10 November 2005

Written submission from the Scottish Parliament Standards Committee

The Standards Committee and the Scottish Parliamentary Standards Commissioner

In 1999, the Standards Committee agreed that, to maximise public confidence in the probity of elected representatives and maintain the credibility of the Parliament, there should be a Standards Commissioner to investigate complaints against MSPs. The Standards Commissioner would be, and would be seen to be, independent of the Standards Committee and Parliament.

The Scottish Parliamentary Standards Commissioner Act 2002 (2002 asp 16)1 established the post of the Scottish Parliamentary Standards Commissioner. The Act gives the Commissioner statutory powers to compel evidence and witnesses, enhancing the independence of the post. The Act also sets out transparent appointment and removal procedures giving the Commissioner security of tenure, again buttressing his/her independence. The Commissioner can only be removed from office if two-thirds of MSPs voting agree.

†392 To create the post of Scottish Parliamentary Standards Commissioner, with the necessary statutory powers, required an Act of the Scottish Parliament.

The post of Standards Commissioner

In contrast to the proposed Scottish Commissioner for Human Rights, the Standards Commissioner is not appointed by Her Majesty but is appointed by the Scottish Parliamentary Corporate Body with the agreement of Parliament.

The Standards Commissioner may appoint staff, and may appoint people to provide services, in each case with the consent of the Parliamentary corporation. It is also for the Parliamentary corporation to determine the terms and conditions of the Standards Commissioner.

The investigative process to be followed by the Commissioner is specified in the 2002 Act. Although the Committee has the power to issue Directions to the Commissioner about the procedure to be followed in investigations generally, it cannot do so in relation to whether or how a particular investigation should be carried out. (Directions have been issued, for example, about how interviews with witnesses should be recorded, for how long documents obtained in the course of an investigation should be retained and to whom those documents should be returned.)

This Committee draws the attention of the Justice 1 Committee to the use of Directions and recommends the use of Directions in the light of its own experience. The Committee considers that the advantage of using Directions as a mechanism is that these can be more promptly revised in the light of operational experience than provisions in the Act itself (which would require primary legislation to amend).

Role of SPCB

As noted above, the issues of appointment, reappointment, terms and conditions, etc do not fall within the remit of the Standards Committee in relation to the Standards Commissioner. The Committee therefore suggests that the Justice 1 Committee seeks the views of the SPCB on those issues.

How the Standards Commissioner works with/interacts with the Standards Committee

Reports to the Committee

The complaints process is in four stages. The first two stages are carried out in private and independently of the Committee by the Commissioner. The Committee is only informed of a complaint when the Commissioner submits his/her report at the close of stage 2.

†393 The Commissioner’s report is submitted directly to the Standards Committee. The Act specifies that the report must be made to the Parliament; the interpretation provisions of the Act state that the “Parliament” includes any Committee of the Parliament. In the event that the Standards Committee is unable to consider a report on a complaint (for example, conflict of interest), the Parliament is able to establish an ad hoc Committee to scrutinise the report.

The Committee cannot alter or amend the report of the Commissioner. However, under the Act, it may direct the Commissioner to carry out a further investigation.2

Under the Code of Conduct, the Committee must make a report to the Parliament after it has concluded its consideration of the Commissioner’s report3. The report of the Commissioner is always published in full as an annexe to the Committee’s own report and therefore becomes a public document.

Annual report

The Act specifies that the Standards Commissioner must make an annual report to the Parliament and lay it before the Parliament. The Act specifies certain statistical information that must be included in the annual report, but it is otherwise for the Commissioner to decide what to include.4 However, the Act also allows the Committee to direct the Commissioner to report to the Parliament on aspects of his or her functions, and it is possible that any such direction would, in practice, be complied with by the Commissioner including that information in the annual report5. There is no exact equivalent, however, of the provision in the new Bill allowing the Parliament to direct the Commissioner as to the form and content of the annual report.

There is no provision in the Act or the standing orders for the Commissioner’s annual report to be debated by the Parliament.

Meetings with the Committee

There is no specified mechanism for the Committee and the Commissioner to meet. When the Commissioner’s post was created, one of the key elements of the post was the Commissioner’s functional independence from the Committee. Frequent meetings between the Committee and the Commissioner could be perceived as undermining that independence.

The Commissioner’s role is limited by the Act to the investigation of complaints. He is not able to comment on the provisions of the Code of Conduct (against which complaints are judged) except in the context of a particular complaint (or in compliance with a direction made by the Committee)6.

The Commissioner may also take the opportunity to raise more general issues about the complaints process or the operation of his/her office in an annual report. The Committee is able to invite the Commissioner to give oral evidence at a formal meeting

†394 of the Committee or to provide it with an informal briefing on issues that he/she has raised. The Committee is also aware that in certain circumstances it would be inappropriate to meet the Commissioner – for example, when a complaint is under consideration by the Committee and there may be a perception of influence or collaboration between the Committee and the Commissioner.

General observations

The Standards Commissioner post is a distinct post with a tightly defined remit. This post does not necessarily have close parallels with other Commissioner posts. In particular, both the Committee and the Commissioner have expressed the view that the Commissioner is not involved in a “dispute resolution” process (unlike, for example the Scottish Public Services Ombudsman, for example, who has the power to mediate and resolve disputes). The complaints process is focused instead on whether or not an MSP has breached a relevant provision.

The Committee was interested to note the provision in the Scottish Commissioner for Human Rights Bill which would allow the proposed Commissioner to show a draft of his/her proposed report to a “specified or identifiable person” (section 9(4)) before that report is submitted to the Parliament.

In 2004, the Committee directed the Standards Commissioner to show a draft copy of his report (minus the conclusion as to whether a breach had occurred) to the complainer before the report was finalised and before it was submitted to the Parliament. However, on several occasions since that direction was made, information about a draft report has, despite it being confidential, appeared in the public domain. The Committee has since reviewed the policy and has now revoked the 2004 Direction.

There must be a risk that any provision that could lead to information contained in a draft report appearing in the public domain prematurely could prejudice the Parliament’s consideration of that report. There is also the possibility that showing a complainer a draft report before it is submitted to the Parliament could give the impression that the complainer is being given a mechanism for “appealing” any of the Commissioner’s findings or recommendations that do not meet his or her expectations.

Summary

The deciding factors in the Standards Committee’s establishment of the post of the Standards Commissioner were:

1) the extent of the powers of the proposed Commissioner and the impact that thiswould have upon the degree of independence and status of the post. 2) that an independent element was essential to ensure public confidence in the robustness of the procedures.

†395 The Standards Committee recommends that in scrutinising the Scottish Commissioner for Human Rights Bill, the Justice 1 Committee may wish to consider—

• the need to take into account public perception of the need for and the operation of a Scottish Commissioner for Human Rights; • the degree of independence required for the post; and • the extent of accountability to the Parliament.

Standards Committee 3 November 2005

1 http://www.opsi.gov.uk/legislation/scotland/acts2002/20020016.htm

2 Section 10(2). See also paragraph 10.2.33 of the Code.

3 Paragraph 10.2.38.

4 Section 18(2).

5 Section 4(2)(b).

6 Section 3(6)(b).

Written submission from Scottish Refugee Council

1. Introduction

1.1 The Scottish Executive has published the Scottish Commissioner for Human Rights Bill. The fundamental purpose of the Bill is to create a Scottish Commissioner for Human Rights (SCHR) which will promote awareness and understanding of, and respect for, human rights.

1.2 Scottish Refugee Council welcomes the opportunity to provide evidence to the Scottish Parliament’s Justice 1 Committee.

1.3 Scottish Refugee Council provides help and advice to those who have fled human rights abuses or other persecution in their homeland and now seek refuge in Scotland. We are a membership organisation that works independently and in partnership with others to provide support to refugees from arrival to settlement and integration into Scottish society. We campaign to ensure that the British government meets its international, legal and humanitarian obligations and to raise awareness of refugee issues.

†396 2. Responses to key questions

2.1 Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

2.1.1 Yes, Scottish Refugee Council welcomes the establishment of the Scottish Commissioner for Human Rights (SCHR) as an independent body to promote human rights in Scotland.

2.1.2 Guidance provided by the Commissioner on rights and responsibilities will provide a beneficial service to public authorities and we hope that community and voluntary organisations providing a public service will also have ample opportunity to take advantage of the Commissioner’s expertise.

2.1.3 We recognise the importance of having a Commissioner whose remit will include all legislation relevant to human rights which has been ratified by the UK, and will not just be limited to the Human Rights Act and the European Convention on Human Rights.

2.1.4 We welcome the Commissioner’s proposed role of providing reports to monitoring committees regarding the UK’s compliance to international human rights instruments, because we recognise this may be an important means of testing Scottish and UK law and practice.

2.2 What would such a body add to existing mechanisms for protecting human rights in Scotland?

2.2.1 An important function of the SCHR will be to raise awareness of human rights issues in Scotland. This will underpin and reinforce Scottish Refugee Council’s work of supporting and ensuring the UK government provides protection to people who have been victims of human rights abuses in their home country.

2.2.2 The Commissioner will play an important role in scrutinising legislation passed by the Scottish Executive and advising the Scottish Parliament on the human rights implications of the legislation. It is important to ensure that mechanisms are put in place to allow the Commissioner to play a similar role during the passage of Westminster legislation that could have a particular impact in Scotland.

2.2.3 The power to publish the findings of enquiries will be an important mechanism to protect human rights in Scotland because of the pressure exerted by making such findings public. However, Scottish Refugee Council is concerned that the power of this mechanism will be limited by the fact the Commissioner will only have the power to conduct enquiries into public bodies. Since many public services are contracted to the public or voluntary sectors this is a significant gap which would limit the power to protect human rights in these areas. The British Commission for Equality and Human Rights

†397 (CEHR) is to have the power to conduct enquiries into any body, and it may be appropriate for the SCHR to have similar power.

2.3 How should the Commissioner be accountable?

2.3.1 The SCHR is to be independent of the Scottish Executive and accountable to the Scottish Parliament. This will ensure the Commissioner’s credibility and is preferable to the position of the CEHR, which will be accountable to the UK Government.

2.3.2 However, the SCHR’s relative independence and devolved remit may lead to differing levels of human rights protection being afforded to different groups of people in Scotland. Since asylum is a ‘reserved’ matter, the human rights of asylum seekers in Scotland will fall under the remit of the CEHR, rather than the SCHR. This is problematic because the service provided by both Commissioners will not be qualitatively equal since the SCHR will have the ability to act independently while the CEHR will ultimately be accountable to a government whose laws and policies may well impact upon human rights.

2.3.3 Scottish Refugee Council believes that human rights are universal and that while areas of policy may be ‘reserved’ to Westminster, the same distinction cannot be applied to the rights of different groups of people. Therefore, steps must be taken to ensure that the human rights of asylum seekers in Scotland are given no less consideration than those of any other group in Scotland. This can only be achieved if they are protected by an independent body with the ability and remit to comment on all issues of human rights.

2.3.4 We have already seen an example where asylum seekers are afforded differing levels of human rights depending on which side of the border they are dispersed. On 1 September Female Genital Mutilation (FGM) legislation came into force in Scotland. Members of the Scottish Parliament accepted the need to protect non-UK citizens, including asylum seekers and overseas students from being subjected to FGM, something the UK Government argued was unnecessary. It is now an offence to make arrangements for a female asylum seeker living in Scotland to be subjected to FGM anywhere in the world, with a maximum sentence of 14 years in prison. This would not be a criminal offence in England and Wales. Scottish Refugee Council strongly supported such a positive move by the Scottish Parliament as we believe that such human rights should be afforded to people regardless of their immigration status. We would impress that the SCHR promote respect for such human rights and we believe that independence from an Executive body is necessary to do so.

2.4 Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

2.4.1 The Scottish Children’s Commissioner’s budget was £1.5 million in the first year and £1.2 million per year thereafter. The Human Rights Commissioner has a wider remit than the Children’s Commissioner in that they will promote human rights in

†398 general, rather than focussing on a particular area. Therefore, the adequacy of a budget of £1 million per annum is questionable.

2.4.2 The Commissioner’s remit is to promote awareness, understanding and respect for human rights. Achieving this will require a national programme of awareness raising. Scottish Refugee Council feels that £1 million per annum is inadequate for this task, especially in light of the fact that a large proportion of this budget will be reserved for staff salaries and other costs of running the Commissioner’s office.

2.5. What lessons might be learned from other Commissioners / Ombudsmen set up under the auspices of the Scottish Parliament / Scottish Executive?

2.5.1 Lessons can be learned from the difficulties faced by the Scottish Children’s Commissioner who has received some criticism for speaking out on what are generally considered ‘reserved’ matters. Asylum is a reserved policy area, but it overlaps with devolved policy areas relating to health, education and children’s welfare. Difficulties may arise for the SCHR where devolved and reserved matters overlap, and explicit agreements must be reached with the CEHR to ensure that the human rights of people caught within the overlap between reserved and devolved policies are properly protected. This is particularly important in light of the difference in how the two Commissioners will be accountable.

2.6 Do you have any views on the proposed remit for the Commissioner?

2.6.1 Scottish Refugee Council welcomes the Commissioner’s general remit of promoting human rights, but we share the general concern of some other agencies that the Commissioner will have insufficient powers to fully protect human rights in Scotland.

2.6.2 We would also like to make the following comments on specific aspects of the remit that will impact upon the people we work with and which we have not already covered:

2.6.3 We welcome the power to enter premises of detention. This is an important power that we believe will help ensure the rights of asylum detainees in Scotland are upheld.

2.6.4 Scottish Refugee Council supports the position that the Commissioner should not generally take on the human rights cases of individuals. However, the bill excludes the Commissioner from taking on any case. We feel that this should be amended to grant the Commissioner’s office power to support or take on test cases in its own name when important precedents could be set.

Gary Christie, Policy Officer 22 November 2005

†399 Written submission from Scottish Water

Thank you for your letter of 10 October 2005 inviting Scottish Water to comment on the general principles of the above bill.

Following the numbering of that letter, Scottish Water’s views are as follows:

1. We welcome the establishment of a Scottish Commissioner for Human Rights. As human rights play an increasingly important role in our lives and how Scotland’s public authorities operate, it will be helpful for us as a public authority to have access to ongoing guidance on how the legislation protecting these rights should best be implemented and complied with. However, we agree with the Scottish Parliament that the Commissioner’s role should be restricted to providing such guidance, and promoting awareness of and increasing respect for human rights as set out in the Bill, and that it would be unnecessary to extend this role to include regulation of public authorities’ compliance with the appropriate legislation. We agree that the courts are the proper forum for human rights issues to be addressed and resolved, and further feel that the Commissioner’s ability to publish his or her inquiry findings will be sufficient to motivate affected public authorities to put right any lapses in compliance with human rights provisions.

2. Scottish Water believes that the creation of a Scottish Commissioner for Human Rights will bring about an increased awareness on the part of the individual of their human rights. We would therefore expect to see an increase in the number of people using existing mechanisms for protecting these rights and, armed with the necessary tools, to do so successfully. In our opinion, this is more a strengthening of these current mechanisms than an addition to them, but is nevertheless welcome.

3. We agree that the Commissioner should be accountable to the Scottish Parliament rather than to the Executive, as is the case with comparable Scottish officeholders, as this will allow for a visible level of coherence to exist between how these officeholders conduct their duties.

4. We do not believe we can comment in detail on whether £1million per annum would be sufficient for the proposed remit of the Commissioner. However, we do agree that the Commissioner should have the ability to charge for his or her services in certain circumstances and for training and guidance over and above those set out by statute.

5. In general terms, it will be important that the Commissioner, like other comparable officeholders, is not only independent yet accountable to the Scottish Parliament, but is visibly independent, and that his or her work is also visible and has a valuable practical impact on the lives of individuals and how businesses and public authorities are run. The services to be offered by the Commissioner must be easily accessible to the vulnerable and underprivileged citizens this Bill is targeting and the Commissioner must maintain a high, unimpeachable profile to ensure this is possible.

†400 6. Scottish Water believes that it is appropriate that the Commissioner’s remit should not be restricted to the European Convention on Human Rights, but should encompass all UK-ratified international human rights instruments, all as they relate to Scotland. In our opinion, this focus on how human rights affects Scottish people and Scottish issues will be vital to the success of the Commissioner. Our main concern in this sense is the potential overlap of work to be done by the Commissioner and by the proposed Commission for Equality and Human Rights for Great Britain, the confusion such overlap would bring to the recipients of advice and guidance, and any unnecessary expenditure which would ensue. We would stress, therefore, the need for a close working relationship between the Commissioner and the proposed Commission, and while we are pleased that this relationship is to be set out in a memorandum of understanding between the two, we would suggest that this memorandum also be sufficiently detailed to allow each to fully understand their own remit and eliminate the possibility of any overlap.

Professor Alan Alexander, FRSE, Chair 16 November 2005

Written submission from Sheppard and Wedderburn

We appreciate the opportunity to comment on the Scottish Commissioner for Human Rights Bill. We welcome the efforts being made to promote human rights in Scotland as we believe there is still much to be done to further augment the implementation of the Human Rights Act 1998. Set out below are our more detailed comments which we hope are constructive.

1. Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

1.1 We agree that a Scottish Commissioner for Human Rights should be established. Human rights play an important role in today's society. Promotion of such rights should be encouraged in a strategic and targeted way and this could be achieved by the establishment of a dedicated office with appropriate statutory functions and resources.

1.2 We are unclear why the Bill establishes a single office-holder as opposed to a Commission as was trailed in the previous consultation paper. Comparable human rights commissions are being created in England and Wales and already exist in Northern Ireland and it had been anticipated that there would be a Scottish Commission with Commission members drawn from diverse backgrounds and with differing but complementary skills. Having a Commissioner rather than a body corporate also runs the risk that the office becomes highly personalised in its approach as is the case to a greater or lesser extent with many of the Commissioners in existence throughout the UK. However, although the bill proposes a single office-holder, it appears to also

†401 create the office of Chief Executive, which is usually more indicative of a body corporate structure.

2. What would such a body add to existing mechanisms for protecting human rights in Scotland?

2.1 Awareness is key in furthering human rights protection in Scotland at every level. One of the key functions of this Commissioner will be to promote awareness. However, in our experience, whilst awareness campaigns are successful to a certain degree, the most effective awareness raising is usually a consequence of searching investigations and inquiries and successful court decisions. It is a pity that the Commissioner’s powers to undertake inquiries, intervene in court actions or indeed raise proceedings independently are so limited.

3. How should the Commissioner be accountable?

3.1 Like other Commissions and Commissioners in Scotland, it is agreed that the Commissioner should be accountable to the Scottish Parliament. This obviously carries with it the caveat that the body is an independent one, which can scrutinise the policies and practices of the Scottish Parliament as well as other public bodies in Scotland. The degree of accountability prescribed in the Bill is appropriate, e.g. the requirement for an annual report, and the requirement to get approval from the Parliamentary corporation for the appointment of new staff. However there should no be further powers of control or direction by the Parliament or Ministers inserted into the Bill as this would serve only to undermine independence.

4. Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

4.1 This rather depends on the package of powers and functions ultimately given to the Commissioner and the level of expectation placed on the office. When comparing the budget with that of other Scottish Commissions and Commissioners, it is reasonably low. The proposed budget for the Northern Ireland Commission for example stands at £1.35 million although this Commission has wider powers including the power to intervene in litigation. With this level of budget and the current range of powers, it is unlikely that the new Commissioner would have a significant impact on human rights compliance and culture within Scotland.

5. What lessons might be learned from other Commissioners/Ombudsmen set up under the auspices of the Scottish Parliament/Scottish Executive

5.1 The expected workload of these bodies could be better predicted. In many cases, e.g. the Scottish Information Commissioner, the workload has been greater than anticipated. Also, it will be important for the Executive, Parliament, media and other stakeholders not to place unreasonable expectations on the new Commissioner. The establishment of a new office and the recruitment and training of staff takes some time

†402 and other Commissioners may have benefited from a greater “lead-in” time to allow practical arrangements to be put in place before their relevant legislation came into force.

6. Do you have any views on the proposed remit for the Commissioner?

6.1 The definition of 'Human Rights' is extremely broad and the powers of the Commissioner itself are (currently) extremely vague. Priority is clearly given to Convention rights, so perhaps it would be more appropriate to confine the Commissioner's powers to those rights and have lesser functions, or 'be guided by' provisions in relation to the non-convention Human Rights instruments.

6.2 The power prescribed by section 3 of the Bill is incredibly broad and not clearly outlined. Does this mean that the Commissioner would be performing a function similar to the Joint Committee on Human Rights in Westminster in terms of reporting on legislation? When considering the duty on the Commissioner to keep under review the policies and practices of Scottish public authorities, it is apparent that this duty must be clarified. This is vital as this is an explicit requirement upon the Commissioner and could be a significant burden in terms of workload and resources.

6.3 In the same section, it is provided that the Commissioner 'may recommend changes to the law and to those policies or practices.' Clarification is required concerning how this will be done and to whom the recommendations are made. Again, as this is an explicit requirement upon the Commissioner it could be a significant burden in terms of workload and resources.

6.4 Regarding inquiries, we have several queries. Why is the ability of the Commissioner to conduct inquiries restricted by the provision that no inquiry may take place into a particular authority, unless it is the only one of its type or it is an inquiry into torture related matters? Further, the fact that the Commissioner cannot conduct an inquiry into the policies and practices of any Scottish public authority in relation to a particular case seems restrictive. This may prevent a Commissioner from conducting an inquiry into the policies and practices of a particular public authority even if that authority had been the subject of several human rights complaints in the last 12 months. Why prevent such inquiries? It is appreciated that to give the Commissioner such powers would increase workload, however, it would further the policy of the Bill through the promotion of human rights.

6.5 Section 11 appears to be quite disjointed and several of the subsections are unnecessary in view of the procedures around intervention.

6.6 The definition of 'Scottish public authority', as provided for in s17 appears overly cumbersome. If the intention of the Bill is to cover public authorities under the Human Rights Act 1998, then the details in subsection (a) are surely unnecessary.

†403 6.7 Regarding the acting Commissioner, is it the intention that actions of an acting Commissioner who is invalidly appointed are rendered invalid? If this is the intention, the reasoning behind it is unclear.

6.8 Regarding the Freedom of Information (Scotland) Act 2002, as there is no mention of this in the Bill, is it correct to assume that the Scottish Commissioner for Human Rights will be added to the Schedules of this Act? This is an express provision in the Equality Bill for the Commissioner's UK counterpart.

Sheppard and Wedderburn 18.11.05

Written submission from Katherine Smith

It is my understanding that you are inviting submissions by 18 November on the feasibility of a Scottish Human Rights Commissioner.

I believe this is an absolute necessity, and I should be grateful if you will take this particular letter as my submission for this purpose.

Katherine Smith (Mrs) & family. 4 November 2005

Written submission from UNISON

Introduction

UNISON is Scotland's biggest public service union representing over 150,000 public service workers in Scotland. Our members include staff in health, local government, the public utilities, education, the community & voluntary sector and more. This paper constitutes UNISON Scotland’s response to the consultation document issued by the Justice Committee of the Scottish Parliament.

1. Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

The proposed Commissioner is necessary for the simple reason that there is an imbalance of power between the individual and the state or the empowered and the disadvantaged. The existence of the law, without more, is insufficient to protect fundamental rights. For example, we now know that slopping out in prisons is unlawful, but by the time the practice is eliminated, it will have been an illegal feature of prison life for over 50 years.

†404 The explanation for that failure to deliver justice rests in the fact that while the convention offered justice in theory, the constitutional and institutional arrangements were inept.

The Human Rights Act and the Scotland Act brought convention rights ‘home’ in a constitutional sense. But experience from other disciplines shows that justice requires a third element – the institutions that facilitate access to justice. The law is not the worker’s friend and it is no more accommodating to the tenant, the refugee, disabled person or child. Such disadvantaged groups need assistance if they are to gain the benefit of their convention rights.

UNISON welcomes the creation of this office with associated staff and resources. UNISON points out that the greater priority attached to human rights is one of the distinguishing features of civic life in Scotland in the early post devolution era. Within that context the establishment of the office of the Commissioner is a landmark event.

However, UNISON Scotland argues that the detail of the bill bears the imprint of the backlash against the emerging human rights culture. The clearest evidence of this is the lack of any effective litigation support or enforcement powers. An issue we address below.

2. What would such a body add to existing mechanisms for protecting human rights in Scotland?

Through education and awareness-raising the Commissioner’s office would inform and raise the expectations of individuals and civic society in relation to human rights.

The quality of legislation from the Scottish Parliament would improve still further.

Agencies with a human rights-related remit would raise their game with respect to human rights – the equality commissions, Care Commission, Social Services Council, local authorities, Ombudsmen and the like.

Service providers would have access to a resource which would enable them to renew their performance by embracing best practice in human rights.

Perhaps most significantly the Commissioner could work with the judiciary and quasi judicial bodies to enhance the quality of their work.

Finally, the Commissioner could work closely with the police and other law enforcement agencies to enhance their compliance with human rights obligations.

3. How should the Commissioner be accountable?

UNISON Scotland welcome the proposed accountability link with Parliament and prefers that to, for example, the arrangement proposed in the new Equality Bill.

†405 4. Do you think that the proposed funding of £1 million per annum will be adequate given the proposed remit of the Commissioner?

UNISON believes that this budget is within the broad range of budgets for comparable organisations in the UK and Ireland but at the bottom of that range. We insist that the committee takes evidence on the need for enforcement powers and support for individual litigation and increases the Commissioner’s budget accordingly.

5. What lessons might be learned from other Commissioners / Ombudsmen set up under the auspices of the Scottish Parliament/Scottish Executive?

No comment.

6. Do you have any views on the proposed remit for the Commissioner?

As we have stated, the duties bear the imprint of the backlash against the emergence of a human rights culture. This is reflected in the ‘soft’ nature of the powers and duties set out in the Bill.

The duty to “promote awareness and understanding of, and respect for, human rights" is welcome. But it is not a substitute for a parallel duty to enforce compliance with human rights obligations when soft measures such as respect, understanding and good practice fail.

Whether wittingly or otherwise, the state has the power to traumatise its citizens and residents by detention, deportation, homelessness, unemployment, poverty and more. While it is right that the Commissioner should engage with this threat using persuasion and understanding in the first instance, there must be an additional line of defence where those measures fail.

The issue here is one of remedy, and efficacy. Enquiries into general themes and intervener status in another person’s legal action relegates the Commissioner to the role of spectator or hanger on. The analogy of the UN peacekeeper at the scene of an atrocity is not without relevance. There are occasions when assertive intervention is required, either in the name of the Commission or in the form of assistance to an individual.

In many instances the opportunity for effective intervention is time limited. Human rights abuses by organisations and institutions are not easily unravelled. To be effective, the Commissioner requires enforcement powers of some kind. The absence of such powers is only explicable with reference to fear of the human rights backlash on part of the Executive or, worse, a wish to limit the ability of the Commissioner to challenge the devolved institutions and other public bodies.

†406 While the absence of effective enforcement or litigation powers is the primary concern, the inferior status of the Scottish Commissioner when compared with the English equivalent is also unacceptable.

The Scottish Commissioner is expressly prohibited from conducting enquiries targeted at an organisation or institution. Enquiries will be themed or subject based. Where is the harm in permitting the Commissioner to examine the conduct of one specific organisation. The Care Commission and Pubic Services Ombudsman have such powers. Is the Scottish Human Rights Commissioner so very different from these devolved bodies that the lack of investigative powers can be justified? We think not.

Related to that is the absence of judicial review. There is no adequate explanation for the absence of this power. Given that most of the bodies that require being ECHR compliant are themselves creatures of statute whose actions are commonly the subject of judicial review, it seems irrational and illogical to bar the Commissioner from access to the remedy of judicial review unless the intention is to undermine the status of the Commissioner.

Similarly, the provision for the award of grants is different on either side of the border. Grants are available in England and Wales but not in Scotland. The Scottish voluntary sector has developed its equality work in partnership with the equality commissions and part of this work is facilitated by access to small grants. The English Commission will be able to develop its network links in this way while the Scottish Commission will not. This may not appear to be a major disadvantage but the benefit gained from collaborative working is significant for Commissions seeking to achieve maximum impact in difficult circumstances.

Finally, the CEHR can award legal assistance in cases with a mix of equality and human rights issues. On the face of it, the CEHR might therefore offer legal assistance in Scotland to a worker with an employment problem that spanned equality and human rights issues. This is desirable. However, if the context of the dispute was a devolved matter such as health or housing, the CEHR would take up the equality issue but, under the devolution settlement, would be barred from automatically picking up the human rights issue as this is a matter for the Scottish Commissioner. But, given that the Scottish Commissioner has no power to grant legal assistance, the matter would simply be left unaddressed. This is not satisfactory.

Matt Smith, Scottish Secretary 18 November 2005

†407 Written submission from Barry Winetrobe, Napier University

A. Introduction

1. This is a response to limited, but important aspects of the Bill, concentrating on the institutional arrangements - appointment, resourcing and accountability - rather than on the functional aspects of the proposed Commissioner. Though I am writing in a personal capacity, I was co-author of a research report in 2003 on such Commissioners and similar public officials who have parliamentary connections, especially at Westminster and Holyrood,1 and I am co-convener of a current research project on this developing area. This legislative proposal is therefore of direct interest to our research, and we intend to follow its progress closely in the coming months.

B. Parliamentary Commissioners

2. As the 2003 report demonstrates, the idea of Commissioners and Ombudsmen directly connected with a parliament – known, at Westminster and some Commonwealth parliaments, as ‘officers of parliament’ - has had a long if somewhat inconsistent and unplanned history at Westminster, but has (perhaps unexpectedly) evolved in a much more substantial way at Holyrood. The concept of Commissioners nominated for appointment (or, in the case of the Parliament’s Standards Commissioner, appointed directly), and resourced and supported, by the Scottish Parliament has become a significant feature of Scottish devolution. As each new Commissioner is proposed or established, it adds to the expectation that any further such public officials or bodies will be established in a similar way.

3. It is in this context that this evidence is submitted. It not does consider the need or otherwise for a Human Rights Commissioner, or on the role and function of such an office. It considers the proposed designation of that post (and the 2 deputies) as a ‘parliamentary commissioner’ one, in addition to all the existing such positions,2 in terms of, in particular,

• its appropriateness to be so designated. • its impact on the work and resources of the Parliament.

C. Appropriateness

4. The 2003 report describes how the Holyrood idea of ‘parliamentary commissioners’ evolved almost by accident with devolution, with appointment of the Auditor General by, and the interim Parliamentary Ombudsman under, the Scotland Act 1998. In the early days, there was no consistency in such designations, with further provisions for the Auditor General as a parliamentary commissioner in 2000, yet, in the same year, the Standards Commission being established as a more traditional Executive public body.3 The creation of the Public Services Ombudsman and Information, Standards, Children and Public Appointments Commissioners in 2002- 2003 confirmed the evolving, unique ‘parliamentary commissioner’ template. The

†408 Children Commissioner post is different from the others, in not being so obviously central to core governmental/parliamentary functions, in a constitutional sense. More recently, the Executive floated the idea of a new charities regulatory body being on a ‘commissioner’ basis, but apparently decided that this was not appropriate.4 There is also a current Member’s Bill proposal for a Commissioner for Older People, to which I responded to its consultation process, suggesting that this type of remit is not appropriate for ‘commissioner’ constitution, as that should be reserved for offices which deal directly with core constitutional/executive oversight.

D. Impact on the Parliament

5. During consideration of the legislation setting up the various Commissioners since 1998, there has been very little public discussion of the impact on the Parliament, in terms of its formal proceedings, and institutionally.

6. Formal proceedings: in plenary or committee, this includes appointments, re- appointments and removals5; receiving and considering reports; general scrutiny of work and conduct; creation, review and amendment of procedures and other related arrangements, and consideration of finances and other resources. Given the Parliament’s size and limited time for plenary and committee proceedings, these can be significant impacts, especially if (as is expected at Holyrood) such business was handled seriously. Benefits that may accrue to the Parliament from these Commissioners (such as improved information on, and scrutiny of, relevant governmental activities) seem to be notional thus far, though this may develop over time.

7. Institutionally: all formal proceedings relating to Commissioners consume the time and resources of the Parliament, its Members and staff. In addition, the statutory Commissioner schemes impose significant continuing functions and duties on the Parliament, especially the SPCB, in their operation. As the minutes of the SPCB (and of Finance Committee) make clear, the financing, resourcing and support functions can be substantial, costly, complex and even (as in issues of Commissioners’ terms and conditions) controversial. In all its activities, both in formal proceedings, and in these institutional or administrative senses, the Parliament must at all time have regard to its statutory basis and potential legal liability (unlike the privileged position at Westminster), under the Scotland Act, and under all other relevant legislation, such as employment, health & safety, FoI and data protection. In some cases, it may be that the Executive has proposed ‘commissioner’ status, as an alternative to some form of more traditional ministerial or public body (e.g. executive agency or ‘quango’), in part because it offloads the administrative burdens (as ‘sponsoring department’) from it to the Parliament.

E. Independence and Accountability

8. It seems that the crucial criterion for ‘commissioner’ status, at least in the minds of their proposers and supporters, is that of ‘independence’. Where articulated in detail, it means ‘independent of the Executive’, and this is seen to be both practical and

†409 symbolic. Indeed it seems to have become the touchstone of ‘commissioner’ status, with other offices perhaps being regarded as ‘less independent’. However, relatively little public consideration has been given to the issue of independence from the Parliament, or that the evolving model, in emphasising independence from the Executive, could be said to have made the Commissioners6 more dependent on the Parliament. Independence is thus a complex, triangular relationship, involving the Commissioners, the Executive7 and the Parliament, the exact nature of which needs to be designed carefully in each individual case. Independence of the Executive is also compromised when a Commissioner is established (as in this case, and unlike, say, the Commissioner for Children and Young People, or the Scottish Parliamentary Standards Commissioner), by way of an Executive Bill, as part of Executive policy.

9. Accountability is also problematic, especially as Commissioners operate in areas of public policy for which the Executive, the Parliament, local authorities and other public bodies are responsible. Issues of constitutional principle are involved, such as the appropriateness of Commissioners themselves being accountable to, and reporting functionally to (and, sometimes, on), the Parliament, the body which is central to their appointment and resourcing. Again, and this is the case with the Human Rights Commissioner, there is a complex cross-jurisdictional network, where one Commissioner may have a remit covering the work and office of other Commissioners. This is further complicated, as in this case, by jurisdictional and operational overlaps between devolved and reserved areas, and relationships with UK bodies. The Parliament is still working out the practical details of its accountability/scrutiny relationships with some Commissioners, especially where, for example, there is no obvious ‘lead committee’.

F. Parliamentary consideration of these aspects

10. It is essential that any parliamentary scrutiny of the present Bill properly and fully examines all these important issues, and does so in full accordance with the Parliament’s usual culture and practice.

11. This applies, in particular, to the Parliament itself in an institutional sense. As the scrutiny of earlier Commissioner legislation has demonstrated, it is extremely difficult for the unique, internal perspectives of the Parliament itself to be articulated properly, if at all, during the legislative process. This has meant that issues of appropriateness, impact, accountability and independence, as they affect the Parliament itself, have often gone by default during the scrutiny process, and this has contributed to some of the problems and complexities which have been experienced in the practical operation of the Parliament/Commissioner relationships, as described above. Thus, what is needed is a form of ‘parliamentary impact assessment’ by the Committee.

12. I hope that the Committee will ensure that the Parliament’s own perspectives on all these important issues can be fully taken into account during the Bill’s legislative scrutiny process, by, for example, examination of the SPCB (through its member with

†410 portfolio responsibility for Commissioners), and relevant senior staff, as well as from interested Committees such as Finance. As far as is possible, this should be done openly and transparently, in accordance with the Parliament’s founding principles. The unique nature and ethos of the Scottish Parliament should enable such meaningful engagement to be both possible and productive. The opportunity should also be taken of seeking the views and experience of the existing Commissioners themselves, either individually or collectively. They will have valuable insights, in particular, on issues where, as in the provision on location of offices in sch 1 para 10, there is novel treatment in the current Bill, or where, as with (re)appointment issues, the various constituent Acts on Commissioners have different provisions.

13. One issue that should be clarified at this Stage, presumably with the Executive, is why the scheme in the Bill is for a Commissioner (and deputies), rather than, as was publicly the case until introduction of the Bill, for a Commission. The Committee should test the claim in the Policy Memorandum (para 8) that “the difference does not affect the key issues around the functions, powers and accountability of the proposed officeholder”, and examine whether the last-minute change does, in any way, relate to ‘commissioner’ status.

14. I am happy to provide any further relevant information or advice which is desired, in so far as I can be of assistance.

Barry Winetrobe Reader in Law, Napier University 21 October 2005

1 O Gay & B Winetrobe, Officers of Parliament: transforming the role, Constitution Unit, UCL, London, 2003, Part III of which examined the Holyrood situation in some detail.

2 Scottish Public Services Ombudsman, Scottish Information Commissioner, Scottish Parliamentary Standards Commissioner, Commissioner for Children and Young People, Auditor General for Scotland, and Commissioner for Public Appointments in Scotland.

3 Public Finance and Accountability (Scotland) Act 2000 and Ethical Standards in Public Life etc (Scotland) Act 2000, respectively

4 “We considered establishing OSCR as a Parliamentary Commission, but received feedback that this would be too much of a departure from existing practice, where the Scottish Parliament only appoints single Commissioners, and where those Commissioners generally have an important role in scrutinising Executive practice”: Consultation Paper on draft Bill, s3.2, June 2004. See now the Charities and Trustee Investment (Scotland) Act 2005.

5 This is currently the subject of a Procedures Committee inquiry

6 Especially, and ironically, the Parliamentary Standards Commissioner

7 Again, this does not apply to the Parliamentary Standards Commissioner.

†411 Written submission from Youthlink Scotland

YouthLink Scotland is the national youth work organisation for Scotland. We support the development of accessible, high quality youth work services which promote the well- being and development of young people. We are a national voluntary organisation working with both statutory and voluntary bodies. YouthLink Scotland’s membership includes nearly 50 voluntary organisations, and 32 local authorities. We welcome the opportunity to submit evidence to the Justice 1 Committee’s Stage 1 Consideration of the Scottish Commissioner for Human Rights Bill (“the Bill”).

YouthLink Scotland’s evidence draws on our extensive experience of promoting, and safeguarding the rights of young people in our society. One aspect of this has been the role of YouthLink Scotland in lobbying Scottish Ministers and MSPs to ensure that young people have a say in the Community Planning process, in the development by local authorities and the police of local antisocial behaviour strategies and in the recruitment of the Scottish Commissioner for Children and Young People (“SCCYP”). It also draws upon the wide ranging experience of our member organisations of working with children and young people to promote their welfare and development. YouthLink Scotland’s evidence focuses on issues around the Scottish Commissioner for Human Right’s (“SCHR”) functions and powers, and the SCHR’s relationship with other key agencies such as the Commission for Equality and Human Rights (“CEHR”) for Great Britain, and the SCCYP.

1. Do you think a Scottish Commissioner for Human Rights should be established? If so, why? If not, why not?

YouthLink Scotland generally welcomes the proposals in the Bill to establish the SCHR as an independent body with a general duty to promote human rights. We believe that this body has the potential to make a significant contribution to encouraging best practice in relation to human rights, and to developing a human rights culture in Scotland. YouthLink Scotland considers that the SCHR’s ability to do so will, however, ultimately depend on the Commissioner’s powers to effect change in these areas, and their relationship with other key bodies such as the CEHR and the SCCYP.

2. What would such a body add to existing mechanisms for protecting human rights in Scotland ?

6. Do you have any views on the proposed remit for the Commissioner?

YouthLink Scotland notes from the Policy Memorandum accompanying the Bill that the proposed CEHR’s “functions and powers in respect of human rights are to be similar to that proposed for the SCHR; but the CEHR’s human rights role in Scotland will be restricted to reserved human rights issues, that is ones for which the UK Government is responsible, while the SCHR will deal with devolved human rights issues”. We further note that the proposals to establish the CEHR “include an explicit expectation that it and the SCHGR will enter into a Memorandum of Understanding to set out how they will co-

†412 operate on matters of mutual interest and work together generally”. YouthLink Scotland takes the view that this relationship will require detailed examination by the Justice 1 Committee, given its likely complexity. We believe that areas which would benefit from such investigation include the division of responsibilities and demarcation between the CEHR and the SCHR, and identification of any potential areas of joint working or conflict between the two bodies. YouthLink Scotland also believes that the Justice 1 Committee should consider the type of situations in which the CEHR would seek to act on human rights issues arising from a Devolved matter, and the circumstances in which the SCHR will agree to, or refuse, the CEHR’s request to do so.

YouthLink Scotland notes from the Explanatory Notes accompanying the Bill that the SCHR’s remit will include promoting the human rights of all age groups, and that there will be significant overlap between SCHR’s work and that of the SCCYP. Against this background, YouthLink Scotland believes it is vital that the Bill should be amended to clearly signpost the SCCYP’s lead role in promoting and safeguarding the rights of children and young people.

We further note it is proposed that “the relationship between the two commissioners be agreed by them in a memorandum of understanding”. YouthLink Scotland considers it essential that a strong working relationship should be built up between the SCHR and the SCCYP. YouthLink Scotland believes that the proposed Memorandum of Understanding could make an invaluable contribution to this process by clarifying the division of responsibilities between the two bodies, and identifying the issues where both are likely to have an interest, and how such issues should be approached. YouthLink Scotland strongly believes that the Memorandum must be actively used by both commissioners to avoid duplication of effort, and to minimise the risk of conflict.

YouthLink Scotland also believes it is important that careful consideration be given to the steps which should be taken to publicise the respective roles and remits of the commissioners. In this respect, we consider there should be significant external marketing, specifically aimed at children and young people, to make the respective roles and functions of the SCHR and the SCCYP easy to understand.

Sections 2(1) – (3): General Duty to promote Human Rights

YouthLink Scotland notes that the SCHR’s general duty under Section 2(1) will be to “promote awareness and understanding of, and respect for, human rights”. YouthLink Scotland further notes that the SCHR’s other duties will include a duty to monitor law, policy and practice, and that the SCHR will also be expected to provide information, guidance and education or training about human rights. YouthLink Scotland is, however, disappointed that the SCHR will have no enforcement powers, and will be unable to take on individual cases. YouthLink Scotland’s concern is that these significant omissions could undermine the SCHR’s credibility, and limit the Commissioner’s effectiveness. Against this background, YouthLink Scotland strongly believes that the Justice 1 Committee should give further consideration to the issue of whether or not the

†413 SCHR will have sufficient powers under the Bill to safeguard and promote human rights, and to develop a human rights culture in Scotland.

Section 4: Information, guidance, education etc.

We believe that the SCHR can play a significant role in promoting human rights through activities such as, for example, producing guidance on human rights issues, maintaining a website, running topic based awareness-raising campaigns for members of the public, participating in key human rights events, conducting human rights training, producing educational materials on human rights for schools and workplaces, and engaging with schools to promote human rights etc. YouthLink Scotland also believes that the SCHR should be able to commission or offer financial support for projects which raise awareness about human rights. YouthLink Scotland takes the view that such activities and projects could make a significant contribution to developing a human rights culture in Scotland.

YouthLink Scotland also considers that the SCHR should advise public authorities on human rights in general, as well as on their duties under the Human Rights Act 1998 (“the HRA”). YouthLink Scotland recognises that public authorities have significant obligations under this legislation and, therefore, considers it appropriate that the SCHR’s statutory remit will mainly focus on the HRA. In this respect, the SCHR’s provision of activities such as training courses for public authorities and running awareness campaigns etc. could help to raise public authorities’ knowledge of the HRA and of their responsibilities under the legislation, and to improve their compliance with the provisions of the HRA. YouthLink Scotland also recommends that public authorities should be encouraged to monitor their own human rights compliance, and that the SCHR should offer guidance on how this can be done in practice. This is another area where we anticipate that progress could assist the development of a human rights culture in Scotland.

Section 5: Power to conduct inquiries

YouthLink Scotland notes that the SCHR will have the power under Section 5 to undertake inquiries into the policies or practices of a particular Scottish public authority, Scottish public authorities generally or Scottish public authorities of a particular description. We note, however, that neither the Scottish Executive nor the Scottish Parliament will be under a duty to take the views of the SCHR into account following any such inquiry. YouthLink Scotland’s concern is that the absence of such a duty, combined with the SCHR’s lack of enforcement powers, will restrict the work of the SCHR, with the attendant risk that the Commissioner’s credibility and effectiveness could suffer as a result.

Section 11: Power to intervene

YouthLink supports the view that the SCHR should be able to assist the Courts, where human rights issues emerge during a trial in civil cases, and where the Courts believe

†414 that it would be helpful for the SCHR to provide background material or other information.

Further Information

Further information about any of the issues raised in our evidence, or about the work of YouthLink Scotland and our member organisations, can be obtained from Margaret McLeod, YouthLink Scotland’s Head of Development, on 0131-313-2488, or from Robert McGeachy, Senior Development Officer (Policy and Parliamentary) also on 0131-313-2488.

YouthLink Scotland 18 November 2005

†415 SUBMISSION FROM THE SCOTTISH PARLIAMENTARY CORPORATE BODY

SCOTTISH COMMISSIONER FOR HUMAN RIGHTS BILL – FINANCIAL MEMORANDUM

Thank you for your letter of 20 October enclosing a questionnaire on the Financial Memorandum produced to accompany the Scottish Commissioner for Human Rights Bill.

As you are probably aware, the Parliament has passed legislation establishing similar officeholders (e.g the Scottish Information Commissioner) and the Scottish Parliamentary Corporate Body (SPCB) has been required under legislation to meet certain obligations with regard to these officeholders including setting the Officeholder’s terms and conditions of appointment, meeting the costs incurred by the Commissioners in the exercise of his/her functions; and scrutinising the Commissioner’s budgets prior to them being approved by the Finance Committee.

The SPCB is aware, and shares with the Committee, the view that value for money among such office holders is essential and continues to seek a proactive approach to the sharing of common services, where practically possible and which will not impact on the functional independence of the office holders. The SPCB therefore welcome the provisions in the legislation which require the SPCB to approve the office location and give consent to staff numbers for the Scottish Commissioner for Human Rights.

On location should it be possible to co-locate with an existing office holder this could provide a financial saving. Although, should this not be possible because of space limitations or the desirability of not having the office in Edinburgh, then it will impact on the financial provision made to accompany this Bill. There are therefore some costs included in the financial memorandum that might be under-estimated, particularly from year 2 onwards and the SPCB would therefore have responsibility for any shortfall in funding which would have to be considered against other competing demands.

We appreciate the Committee will examine the Memorandum in detail and would invite the Committee to consider the possible impact any shortfall in setting an initial budget based on the Financial Memorandum would have on the SPCB. We consider that based on our experience it is essential to get the initial budget as accurate as possible thereby reducing the possibility of increases in future years, other than legitimate increases, for example staff salary cost of living increases.

Drawing on our experience, we offer the following comments on the Financial Memorandum on the attached questionnaire which I hope the Committee will find helpful.

Yours sincerely

GEORGE REID

†416 SPCB Response

Consultation

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

Answer – The SPCB did not respond to the public consultation and only had sight of the detail of the financial memorandum on introduction of the Bill.

Questions 2 and 3 – not applicable.

Costs

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

Answer - the Financial Memorandum (FM) states that the costs of funding the Commissioner and his office will be publicly funded by the SPCB. The Scottish Executive will transfer funding of £1m per year from 2006-07 to meet the costs of the Commissioner. Any shortfall would therefore have to be met by the SPCB. We are not satisfied that all costs have been taken fully into account in the FM and although we consider that £1m will be sufficient for the first year, as the office will not be fully operational, we do not consider that the FM is as accurate as it could be for the Commissioner’s second year, unless we are successful in the sharing of some common services. In particular we would comment as follows:-

Paragraph 106-109, commissioner salaries – we note that the Commissioner’s salary is estimated between £70,000 and £75,000 and that the deputy’s salaries are estimated between £45,000 and £55,000. The SPCB has in the past determined that full-time Officeholder’s starting salaries should be set at £72,000 (increased in line with an independently recommended uprating mechanism on an annual basis). The current salaries of the Officeholders for which the SPCB has responsibility for with effect from 1 April 2005 are as follow;-

Scottish Public Services Ombudsman - £84,477 (not between £70-75K set out in the FM) Deputy Ombudsmen (2.5 days per week) - £29,045 Scottish Information Commissioner - £77,722 Scottish Parliamentary Standards Commissioner (5-10 days per month) - £38,533.50 Commissioner for Children and Young People in Scotland - £74,520 Commissioner for Public Appointments in Scotland (3 days per week) - £43,470

†417 The salary levels of the office holders has been reviewed by the independent Senior Salaries Review Board. It is not clear to us what basis the salary levels of the deputy Commissioner have been estimated.

Paragraphs 110-113, recruitment – previous experience suggests that the costs of undertaking a recruitment exercise for officeholders (the Commissioner and possibly two deputy Commissioners) will be in the region of at least £15,000 for a single office holder. Given that we would be advertising for more than one Commissioner we would expect that cost to be increased although not considerably. In line with good recruitment practice the selection panel would have an external independent assessor to ensure the selection and recruitment process is conducted fairly. This would add an additional sum of around £2,000 to the recruitment exercise.

Paragraph 114-119, staff salaries - we assume that there will be a differential between the deputy’s salary and that of the chief executive and again to draw suitable candidates for this post, we consider that the chief executive’s salary would have to at an appropriate level, possibly equivalent to an SPCB Grade 6 – minimum around £40,000, particularly if they are also to be the Accountable Officer for the organisation. Although, on this point we have submitted evidence to the Justice 1 Committee suggesting that the Commissioner should be the Accountable Officer. If we look at the staffing budget of the Children’s Commissioner for 15 staff in 2006-07 which is estimated at approximately £583,000 this would mean that the Human Rights Commissioner’s requirement could be in the region of £388,000 and not £350,000 as estimated. Although, as explained in the covering letter the SPCB will be actively looking to see if any support staff functions can be shared between the existing officeholders.

Paragraph 120, rental costs – the provision that the Commissioner must seek the approval of the SPCB in respect of his/her office location is very helpful. The SPCB will ensure that the Commissioner considers relevant location policies and considers the option of co-locating with other Officeholders to maximise any possible savings through shared rent and/or services.

Paragraphs 120 and 121, acquisition and conversion of office and the cost of office equipment etc – should it not be possible to co-locate with an existing Commissioner or the view is taken that the office should be outwith Edinburgh (where the majority of existing commissioners have established their offices), the cost of fitting out the Commissioner’s office is more likely to be in the region of £250,000 (including external advisor costs – to cover property location searches, lease handling, and to purchase furniture and IT systems) based on the experience of other office holders.

Paragraph 124-125, promotion and awareness-raising – given this is the Commissioner’s main role we consider £175,000 may be sufficient, when compared to the other Commissioners. The FM accompanying the Children’s Commissioner estimated this to be £200,000, but her latest budget is just under £160,000 for the 2006/07 financial year.

†418 Paragraph 126, research – we would encourage the Human Rights Commissioner to collaborate with other Officeholder’s and in particular the Children’s Commissioner where possible to undertake joint research projects which will result in savings.

We do, however, note that there is not provision for the Commissioner undertaking inquiries nor for external consultants/advice (e.g. auditor’s fee, or legal advice).

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

In future years the funding will be met out of the SPCB budget submission.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

N/A

†419 FINANCE COMMITTEE

EXTRACT FROM THE MINUTES

28th Meeting, 2005 (Session 2)

Tuesday 29 November 2005

Present:

Ms Wendy Alexander Mr Andrew Arbuckle Mark Ballard Derek Brownlee Mr Frank McAveety Des McNulty (Convener) Jim Mather Dr Elaine Murray John Swinney

The meeting opened at 10.01 am.

Scottish Commissioner for Human Rights Bill: The Committee took evidence on the Financial Memorandum from—

Brian Peddie, Head of Human Rights and Law Reform Branch; Ed Thomson, Policy Officer, Human Rights and Law Reform Branch; Ross Truslove, Policy Officer, Human Rights and Law Reform Branch, Civil Law Division; and John St Clair, Legal And Parliamentary Services, Scottish Executive.

†420 3191 29 NOVEMBER 2005 3192

Executive has announced that it would provide £1 Scottish Parliament million a year to meet the costs of the commissioner starting in 2006-07. The financial Finance Committee memorandum sets out our more detailed estimate of costs, although I emphasise that the figures are Tuesday 29 November 2005 only estimates. The actual costs would depend on matters such as staffing and office location, which [THE CONVENER opened the meeting at 10:01] would be decided by the commissioner in consultation with the SPCB. Scottish Commissioner for We are happy to answer any questions that Human Rights Bill: members may have arising from the financial memorandum or any aspects of the bill. I Financial Memorandum apologise for the fact that there is a slight error in the table at the end of the financial memorandum. The Deputy Convener (Mr John Swinney): Under “Functional costs”, the estimate for travel in th Good morning. I welcome members to the 28 2006-07 is £9,000; however, in paragraph 125 we meeting in 2005 of the Finance Committee. We say that, for planning purposes, we estimate that have received apologies from our convener, Des expenditure on travel will be the same for that year McNulty, who has been delayed by difficulties on as for subsequent years. The figure in the table the rail system, which are being dealt with. He will should, therefore, be £18,000, not £9,000, which be with us as soon as he can get here. I assume brings the total cost for 2006-07 to £902,000, not that that is also the case for Wendy Alexander and £893,000. I apologise to the committee for that Frank McAveety, who are making the same error. journey. I welcome members of the press and the public to the committee and ask that everyone The Deputy Convener: I am not sure whether switch off their pagers and mobile phones for the the eagle-eyed members of the committee had duration of the meeting. spotted that, but I thank you for drawing the matter to our attention. The first item on our agenda is consideration of the financial memorandum to the Scottish I hope that you have seen the evidence that the Commissioner for Human Rights Bill. We have committee has received from commissioners in received written submissions from the Scottish relation to the formulation of their budgets, Parliamentary Corporate Body and the Scottish especially the dialogue that we had last week with public services ombudsman, which were circulated the commissioner for children and young people to members in advance of the meeting. We have and the previous week with representatives of the with us, to answer questions, officials from the Scottish Parliamentary Corporate Body on the Scottish Executive. Brian Peddie is the head of the process of budget setting. Did the Executive human rights and law reform branch; Ed Thomson consider providing the SPCB with the full power to and Ross Truslove are also from the human rights set the commissioner’s budget? and law reform branch; and John St Clair is from Brian Peddie: We did not consider the matter in the office of the solicitor to the Scottish Executive. those terms. We assumed that that would take I invite Mr Peddie to make an opening place in any event, without the need for a specific statement, after which we will move on to statutory power, as part of the normal budget- questions. setting process in relation to the other commissioners and therefore also in relation to the Brian Peddie (Scottish Executive Justice new commissioner. I do not think that such a Department): I will say just a few words by way of power exists for any of the other commissioners. introduction. The purpose of the bill is to create a There was no feeling that it was not a role for the human rights commissioner for Scotland. The corporate body to play; we just had not identified commissioner’s role would be to promote that there might be a requirement for such a awareness of, and respect for, human rights. He statutory power. We assumed that that would take or she would not have any enforcement powers. place as part of the normal budget-setting process The proposed arrangements for the human from year to year. rights commissioner are broadly similar to those The Deputy Convener: That is an interesting that are in place for other commissioners who are answer. The Scottish Executive’s working accountable to the Parliament, such as the assumption is that the SPCB has the ability to information commissioner and the Scottish public determine the budgets of each and every one of services ombudsman. The commissioner would be the commissioners. independent and appointed by Her Majesty on the nomination of the Parliament. The commissioner Brian Peddie: Essentially, yes. Although I am would be funded by the Parliament, but the not an expert on the exact mechanisms, I

†421 3193 29 NOVEMBER 2005 3194

understand that the Scottish Executive and the Brian Peddie: Correct. corporate body agree the funding to be provided for the Parliament but that we regard the detail of Mark Ballard (Lothians) (Green): I will follow the commissioner budgets as a matter for the up on your answers to the questions about the corporate body to determine in consultation with budget-setting responsibilities. How do you the commissioners on the basis of bids that they reconcile the SPCB’s power over the budget with put forward. paragraph 85 of the policy memorandum? That paragraph states: The Deputy Convener: The Executive’s assumption is that it is entirely appropriate for the “The independence of the SCHR will be important” SPCB to determine either the components or the and that totality of the budgets of the individual “To be independent, the SCHR must be in control of his or commissioners. That would be the product of a her strategic direction and priorities”, dialogue, but ultimately if there was uncertainty or dispute it would be within the powers of the which corporate body to determine those figures. “should apply across all of the SCHR’s functions.” Brian Peddie: The short answer is yes. That is It continues: certainly the case for the totality and it would be difficult to decide whether the totality was “The SCHR should not be subject to external control or reasonable without examining at least the main direction in his or her work programme.” elements of the budget at some level below that. I How do you reconcile that aim of independence would not want to express a view on the exact of action with the budget control by the corporate level of detail, but on the basis that the Parliament body? If the corporate body queries the SCHR’s funds the commissioners through the corporate budget, would that not be, in effect, control or body, it is, in essence, the Parliament’s money. direction of his or her work? Therefore, it would seem entirely appropriate that the decision, ultimately, is for the corporate body. Brian Peddie: I do not think that there is a contradiction, although I see the point that you are The Deputy Convener: You mentioned that the getting at. I can envisage a situation in which the sum of £1 million would in effect be the grant from commissioner comes to the corporate body with a the Executive to the SPCB to pay for the costs of budget bid, but it says, “Sorry, we will not give you the commissioner. By giving a grant of £1 million, that much, we will give you £X instead.” The are you saying that the Executive’s view is that the commissioner may say that, in that case, he or commissioner’s budget should be £1 million and she will not be able to carry out certain activities. that that is a ceiling on the budget, or is the £1 That might happen but, when we talk about million just a part contribution from the Executive? independence, we are referring to how the Brian Peddie: The answer is probably between commissioner goes about his or her business and the two. The Executive believes that £1 million is the priorities that he or she identifies. That will not an appropriate provision for the commissioner’s and cannot extend to total independence in setting budget, so in effect it is topping up the the budget, because the funding comes from the Parliament’s budget by that amount. That does not Parliament. It will ultimately be for the Parliament necessarily mean that we expect the to decide, after discussion with the commissioner, commissioner’s budget to be exactly £1 million. It what the budget should be. If the commissioner is for the Parliament and the corporate body, in feels that a proposed budget settlement would be consultation with the commissioner, to decide unduly restrictive and would prevent him or her what the budget ought to be. If it is concluded that from carrying out activities that they would like to the budget ought to be more than £1 million, the do, we would certainly expect the commissioner to corporate body could make such a decision, but say so. At the end of the day, the commissioner the commissioner would not be funded to the will have the freedom to run his or her work extent that the figure exceeded £1 million—I programme within whatever budget is set—that is presume that the Parliament would have to find what we mean by independence. that money from somewhere else. Mark Ballard: So the negotiation will be on a The Deputy Convener: For the sake of clarity, if budget bid for a figure and not on the details of the the budget is £800,000, how much money will the budget. Therefore, the SPCB will not, for example, Executive give the Parliament? say that too much has been budgeted for Brian Peddie: One million pounds. We have promotion and consultation and that the said that we will provide £1 million—that is in the commissioner ought to spend less on that. Is the baseline. model that you suggest that the bid will be simply The Deputy Convener: If the budget is set at for a figure and that the commissioner will decide £1.2 million, the Executive will still provide £1 how to spend the money? million. †422 3195 29 NOVEMBER 2005 3196

Brian Peddie: It would not be appropriate or SPCB, but when its representatives were before helpful for me to comment on the detail of how the us they, too, were uncertain about that power. corporate body should go about its discussions with the commissioner. It is not for us to tell the corporate body how to do its business in such 10:15 matters. We leave the required level of detail in Brian Peddie: We share a common interest— budget discussions up to the corporate body to there is general agreement that there should be decide, in dialogue with the various proper accountability for and scrutiny of commissioners. expenditure, which includes discussion of budget bids. The Executive goes through similar Mark Ballard: You talked about a budget bid. processes with bodies that it sponsors, many of Will it be for the commissioner or for the corporate which are expressly independent. However, body to decide what the commissioner does with independence is not the same as having a blank the budget? Surely that is key to understanding cheque, nor can it be. There is no inherent what paragraph 85 of the policy memorandum contradiction between entrenched independence means when it talks about the commissioner’s on the one hand and having to agree a budget on independence and freedom from “external control the other hand. The budget has to come from or direction”. It is not fair on the corporate body or somewhere—in this case it comes from the the commissioner to leave the matter as vague as Parliament—and it is entirely right that the you have done. Parliament, in agreeing a budget figure, can look Brian Peddie: With respect, it is not really for us to some extent at how the commissioner proposes to comment on the detail of the process. However, to spend that money. I would expect a commissioner or anyone else I have the feeling that the situation extends who makes a budget bid to say something about beyond the human rights commissioner to other how they propose to use the money, in line with commissioners, as was mentioned. We have normal practice. If the commissioner is not followed with interest the discussions elsewhere, successful in securing the full bid, for whatever in particular with the children’s commissioner. If it reason, he or she might say that they will not be were felt that there was some uncertainty that able to engage in certain activities in which they might be resolved by having additional legislative had planned to engage. I cannot go any further provision, we could look at that. However, I do not than that. think that there is an inherent contradiction The Deputy Convener: The issue is a genuine between the commissioner’s independence and difficulty. We rehearsed it with the SPCB two agreeing a budget. weeks ago and with the commissioner for children The Deputy Convener: I do not want to pre- and young people last week. Previous legislation judge what the committee will say in its report, but has used a similar format to that which is it is likely that we will want the Executive to look proposed in the bill. The Executive—or, in the carefully at that provision. It appears to cause a case of the children’s commissioner, the great deal of uncertainty in the corporate body, Parliament—has said that it wants a post to be and certainly in the Finance Committee, about created and that the corporate body will be how the financial framework within which the responsible for negotiating the budget. commissioners operate is constructed so that it Understandably, the independence of the neither compromises their independence nor commissioner will be entrenched in the bill, but the creates a sense that it is unreasonable for the grey area is whether that independence will be parliamentary authorities to say, “We do not want compromised if a regulatory body—the SPCB, or you to spend your money in that fashion.” We perhaps even the Finance Committee—asks why might come back to that issue. the commissioner is spending money on a particular issue. Does anyone else want to raise points on governance issues? That grey area creates a lot of uncertainty about how financial control can be exercised over the Dr Elaine Murray (Dumfries) (Lab): The SPCB plans of individual commissioners. It leads to a has welcomed the fact that it would be able to sense, in this committee, that we are being invited approve the office location and give consent to to give blank cheques to commissioners to allow staff numbers. them to do whatever they want. The Government However, one of the concerns that emerged needs to think carefully about the balance of that from our discussions with the children’s provision. Mark Ballard commented, in relation to commissioner was about participation. She felt paragraph 85 of the policy memorandum, that it is strongly that she had to be proactive about uncertain how far the Government intends that participation and there is an obvious price tag financial power to be exercised by the SPCB. You attached to that. Part of the human rights said in an answer that that decision was up to the commissioner’s duty will be to promote

†423 3197 29 NOVEMBER 2005 3198

awareness, understanding of and respect for £175,000. You say that those things will be central human rights. That is a wide definition that could to the commissioner’s role. How will the Executive be interpreted in a variety of ways with which costs quantify and ensure value for money? Questions would be associated. Would the SPCB have any on that exact area were asked when we dealt with control over that aspect or would it come under the the budget for the children’s commissioner. complete control of the commissioner? Brian Peddie: As part of budget discussions Brian Peddie: Again, that concerns the internal between the commissioner and the corporate budget-setting process, so I am not sure to what body, it would be reasonable for the corporate extent it is a question for us. I am not trying to body to look for some indication from the pass the buck; I am genuinely not sure about the commissioner about what activity would come extent to which it is appropriate for the Executive under the heading of promotion and awareness to comment on what will be a relationship between raising and what it would be expected to deliver. the corporate body and the commissioner. I hesitate to answer because, first, I do not claim In general, it would be reasonable to expect that, to be an expert in assessing the value-for-money as part of a budget bid submission, a aspect of awareness raising and publicity activity. I commissioner such as the proposed human rights also hesitate because it will be for the corporate commissioner would say how much they proposed body, in discussion with the commissioner, to to spend under significant budget headings such decide on the appropriate measures for assessing as promotion and awareness and that they would whether effectiveness is being achieved. probably give some indication of what that activity We would expect that the commissioner would would involve and what they would expect to gain say something about value for money in his or her from it. I am not sure that I can add much more on annual reports. It could also be commented on in that subject. the course of auditing the commissioner’s Dr Murray: The Executive aims to set up the accounts. I am not sure that I can go much further post, so the Executive has responsibility for it. If than that. the commissioner overspent on their participation Mark Ballard: Will value-for-money budget, for example, I presume that the SPCB accountability be included in the annual report would have to find that money from somewhere rather than in the budget-setting process? else. You would not give the SPCB any more money if the commissioner turned out to be more Brian Peddie: It will probably be included in expensive than you expected, so that cost would both. As part of the discussions on the budget, it fall to the SPCB, which would have to find the would be reasonable to look for some indication of money from somewhere in its budget. what the money would be spent on and what it would achieve. That would enable us to assess Brian Peddie: I am not sure about the extent to after the event whether the expenditure had been which underspend can happen; I do not claim to effective. I would expect that to feature to some be an expert on internal accounting in the extent at least in the annual report and possibly Parliament. It is true that we said that we would also in the annual accounts. provide £1 million per year to cover the costs of the commissioner. We would expect a significant Mr Andrew Arbuckle (Mid Scotland and Fife) part of the commissioner’s activity to be promotion (LD): The financial memorandum covers the rental and awareness raising. The bill proposes that costs of the commissioner’s office. Is that figure such activity would be the commissioner’s main based on costs in central Edinburgh or on the focus, and it would create specific functions in that considerably lower cost of office space in rural or regard. I would expect the commissioner to say as deprived areas? part of a budget bid how much he or she proposed to spend on awareness raising and promotion. I Ed Thomson (Scottish Executive Justice assume that that would be accompanied by an Department): When we were estimating what the costs might broadly be for each item, we looked to expectation that they would stay within the limit, so comparable bodies around the United Kingdom. that there would not be an overspend on the total The rental cost estimate is drawn from seemingly budget. comparable figures for the Northern Ireland Dr Murray: The commissioner could argue that Human Rights Commission, the children’s such expenditure was necessary in order to fulfil commissioner for Wales— their statutory duties. The children’s commissioner Mr Arbuckle: Therefore, the estimate is not has argued, “This has been required of me by based on rental costs in Scotland. legislation; therefore, I have to do it.” Ed Thomson: It is not specific to any location. Mark Ballard: Elaine Murray talked about the budget for promotion and awareness raising, Mr Arbuckle: You talked earlier about what which is laid out in the financial memorandum as would happen in the event of overspend or

†424 3199 29 NOVEMBER 2005 3200 underspend and about the commissioner’s commissioner will have a slightly different role relationship with the corporate body. Has the from those of the Irish and Northern Irish corporate body been involved right from the start commissioners. For example, the Scottish in establishing that relationship or has it been just commissioner will not have the complaints- told about it? handling or case-supporting role that the others have. We have scaled back the staffing Brian Peddie: When the proposals were first assumption based on the fact that we do not developed, that was done from the starting point of expect the commissioner to be involved in those what accountability mechanisms and structure the particularly resource-intensive roles. Executive felt would be appropriate for the commissioner in the light of responses to public Mr Arbuckle: Under one of the expenditure consultations. headings, you identify up to £50,000 for research. What areas of research might the commissioner We have had some discussion at official level be interested in that would justify the spending of 5 with corporate body officials. In particular, you will per cent of his or her budget? have noticed that there is a specific provision in the bill that requires corporate body approval for Ed Thomson: One of the reasons for the location of the commissioner’s offices. That is establishing a Scottish human rights commissioner new, in the sense that such a provision was not in the first place is that awareness of human rights included in the legislation for any of the previous issues is low in Scotland. At least, it is extremely commissioners. The provision was included at the difficult to get information about the level of express request of the corporate body, arising awareness. There simply is not much information from our discussions at official level, in which we about the level of awareness among public were advised that that was felt to be a useful authorities or other sectors. We imagine that a provision for the corporate body to have. We were significant part of the commissioner’s early work happy to agree to that, as we saw it as a logical would be to investigate exactly what the situation extension of the provisions that were already is. proposed on corporate body approval for staff The Northern Ireland Human Rights numbers and so on. Commission has undertaken research in relation Mr Arbuckle: The corporate body indicated that to a number of topics, some of which are specific it has concerns that conservative estimates have to a Northern Ireland context, such as the use of been made with regard to the salaries of baton rounds by the police and the policing of commissioners and their staff. Have you any parades. However, the commission has also comment to make on that? considered human rights issues relating to the rights of older people, health care and medical Ed Thomson: Certainly. Again, our estimates of negligence. We have seen, from other salaries for commissioners and staff were drawn jurisdictions, that there are a large number of fields from examples of other comparable bodies around in which statutory human rights bodies have an the United Kingdom. interest in gaining information. Although we noticed that the SPCB said that The Deputy Convener: In its response to the some of the statutory commissioners in Scotland consultation exercise, the SPCB said: are paid more than the estimate that is set out in the financial memorandum, we see that figure as a “The SPCB did not respond to the public consultation and only had sight of the detail of the financial median figure compared with some of the other memorandum on introduction of the Bill.” bodies in Scotland and elsewhere in the UK. We think that that figure reflects the situation Bearing in mind the fact that the corporate body reasonably well. For example, the chief will, in effect, have to manage the budget and pick commissioner of the Northern Ireland Human up any shortfall if it exceeds the Executive’s Rights Commission receives about £60,000; the expectations, has consultation been adequate, children’s commissioner for Wales receives given that the corporate body saw the financial around £70,000; and most of the Scottish statutory memorandum only when the bill was published? commissioners and ombudsmen are in the £70,000 to £80,000 bracket. 10:30 We considered the broad staffing structure of Brian Peddie: As I said, we had some comparable organisations in other jurisdictions discussion with the corporate body at official level, and thought about how that sort of structure might but one could always have more consultation. In need to be adapted for the specific roles that we retrospect, it might have been helpful had we had set out in the bill for the Scottish provided the SPCB with a draft of the financial commissioner for human rights. Our estimate of memorandum at an earlier stage, rather than the staffing that would be necessary in Scotland simply on publication. I am not sure how was based on the fact that the Scottish

†425 3201 29 NOVEMBER 2005 3202

significant an impact that would have had but, in in the financial memorandum a more detailed, line- retrospect, it might have been useful to do it. by-line description of what we anticipated its expenditure to be on, say, inquiries or legal fees, The Deputy Convener: It comes down to the that would have created an expectation of how we point that we discussed earlier: the corporate body expected the commissioner to structure his or her feels exposed because the legislation is not clear work programme. Our expectation is that the lines about the extent of its intervention in budgetary that we have described—such as promotion and control. Further dialogue on that point would be awareness raising, general running costs and helpful. travel expenditure—will include costs that are Brian Peddie: I would be happy to pursue that incurred by the commissioner in undertaking with corporate body officials, although I reiterate inquiries or providing advice, if that was part of his that I am not sure how appropriate it would be for promotion and awareness-raising work. the Executive to take part in discussions on the We set things out rather generally and we corporate body’s internal budget mechanisms and deliberately did not go into the detail of how much how it goes about budget dialogue with we expect to be spent on each of the statutory commissioners. Moreover, I am not sure how powers, because we did not want to create an much value we would bring to such discussions. expectation that that expenditure would be met. However, we are happy to have such discussions if the corporate body would find them useful. Mark Ballard: Paragraph 126 of the financial memorandum states: Mark Ballard: In commenting on paragraph 126 of the financial memorandum, the corporate body “A budget of £50,000 has been assumed, on the basis states: that the Commissioner may be unlikely to want to conduct more than one large research project in the course of a “we would encourage the Human Rights Commissioner single year.” to collaborate with other Officeholders … to undertake joint research projects which will result in savings. Is not that exactly the kind of detailed setting of priorities and spending for the commissioner that We do, however, note that there is not provision for the you said you were unable to provide in relation to Commissioner undertaking inquiries nor for external consultants/advice (e.g. auditor’s fee, or legal advice).” external legal advice? Why were you able to set out costs on the basis of one large research Given that the commissioner’s responsibilities, as project being carried out but are unable to say laid out in the policy memorandum, include anything about spending on external legal advice? empowering the public to assert their human rights more effectively and providing advice to public Ed Thomson: That is an excellent question. bodies on how to comply with human rights The fact that there is a contradiction reflects the legislation, will there not be a need for legal advice difficulties that we face in setting out estimated in particular? If there is a need for independent costs in financial memoranda in striking a balance external legal advice, where can it be found in the between a level of detail that would be helpful to budget? Parliament and not being too prescriptive. Research costs are much easier to estimate than Brian Peddie: We recognise that there might be is a level of legal activity. The degree to which the a need for such advice from time to time but, commissioner might incur legal costs, whether in frankly, when compiling the financial memorandum legally proofing legal advice to other bodies or in we could not meaningfully estimate how much the course of interventions, is much harder to activity there might be. If we had put a figure estimate. The amount of legal advice is entirely against that, it might have created a misleading dependent on the commissioner’s strategic impression, which might have indicated that we direction. I take your point entirely about the line had expectations of a certain amount of on research. As I said, research costs are easier expenditure under that heading. We would have to identify. had nothing to base that on, and it might have proved to be totally unjustified. Brian Peddie: There is not necessarily a contradiction. Part of the thinking behind what we I should mention that in estimating the likely say in the financial memorandum about research level of travel costs for the purpose of the financial is that a large research programme takes a certain memorandum, we included activity in the context amount of managing. Given the effort that is of inquiries. required in monitoring and carrying out projects, Ed Thomson: To be frank, we had a bit of and the likely size of the commissioner’s office, we difficulty in drafting the financial memorandum, thought that it would be unlikely to be practical for because the body will have independence over its the commissioner to be able to run more than one work programme and the issues that it decides to large research project at a time. That does not take up. As Brian Peddie said, one of the necessarily mean that we expect the difficulties that we faced was that if we had set out commissioner to be running one significant research project every year: the commissioner

†426 3203 29 NOVEMBER 2005 3204 might, in a given year, have more but smaller projects to run, or projects might run from one year into the next. Dr Murray: What practical measures are being considered to ensure that the commissioner uses public funds responsibly and efficiently? Brian Peddie: I do not want to risk going back to our previous discussion about accountability. I expect that in presenting a budget bid, the commissioner would say something about the main headings under which the money would be spent and what the spend would be expected to achieve. The commissioner will, of course, submit annual reports to Parliament to describe what activity they have been engaged in, and the commissioner’s accounts would be audited by the Auditor General for Scotland, which I imagine would provide the main element of control in relation to the detail of financial propriety. Dr Murray: Other Executive departments and Executive-funded bodies—such as local authorities and health boards—are going through an efficient government process whereby they are expected to find particular savings or spend as much as possible on front-line services. Will anything similar apply to the commissioner, or will the commissioner have a blank cheque? Brian Peddie: The Executive is engaged in such an exercise, under the efficient government initiative, to examine the scope for bodies that are accountable to Parliament to share services, to co- locate offices and so on. We have had discussions with the Scottish public services ombudsman on that and with colleagues in the Executive who are involved in the efficient government initiative. My understanding is that, in addition to anything that the Scottish Parliamentary Corporate Body might undertake, it is at least possible that the scope of Executive activity might extend to parliamentary bodies—that would not, of course, be compulsory, but bodies that are accountable to Parliament might have the opportunity to share services. However, that would be for separate discussion between colleagues on the efficient government side of the Executive and the Scottish Parliamentary Corporate Body. The Deputy Convener: Thank you for your evidence this morning. The committee will reflect on the points that have been discussed. Thankfully, the convener is now with us, so I hand over the chair.

†427

abcdefghijklm = aÉéìíó=jáåáëíÉê=Ñçê=bÇìÅ~íáçå=C=vçìåÖ=mÉçéäÉ= sáÅíçêá~=nì~ó= = oçÄÉêí=_êçïå=jpm= bÇáåÄìêÖÜ=beS=Snn= = = Pauline McNeill MSP qÉäÉéÜçåÉW=MUQR=TTQ=NTQN= Convener ëÅçííáëÜKãáåáëíÉêë]ëÅçíä~åÇKÖëáKÖçîKìâ= Justice 1 Committee ÜííéWLLïïïKëÅçíä~åÇKÖçîKìâ= The Scottish Parliament = EDINBURGH = EH99 1SP = = ===^éêáä=OMMS=

______

I am writing to provide the Executive’s response to the Justice 1 Committee’s Stage 1 Report on the Scottish Commissioner for Human Rights Bill.

The Executive welcomes the thorough scrutiny which the Committee has given the Bill and which is reflected in the comprehensive Stage 1 Report. While I note that the Committee has not felt able to endorse the general principles of the Bill at this stage, I welcome the Committee’s agreement that there is a gap in existing provision and that a statutory body would have the potential to make a difference in ensuring compliance with human rights in the delivery of public services. That is why the Executive has proposed creation of the SCHR, and this therefore seems to provide a suitable and mutually-agreed basis on which to take forward consideration of our detailed proposals.

The Executive believes strongly that creation of the SCHR would make a significant contribution to the creation of a human rights culture in Scotland, to the benefit of all Scotland’s people and society as a whole. It would do so in two main ways. Firstly, it would help to secure that individuals, not least those from more excluded backgrounds, should have a sound knowledge of their rights, and of their attendant responsibilities. Only by having such knowledge can individuals assert those rights in an effective way. Secondly, it would also help public authorities to have such knowledge and to take it into account in developing and implementing their policies and practices. This should not only help minimise the risk of public authorities breaching human rights, with all the implications that this can have, but it should also improve the quality of public services, since the principles enshrined in the European Convention on Human Rights are ones that would anyway be desirable even if they were not legally enforceable. And by increasing awareness of human rights it should reduce the risk of resources being wasted through the bringing of unfounded claims, or of authorities failing to take appropriate otherwise desirable action because of exaggerated concerns about possible human rights implications.

This is all part of the Executive’s wider priorities in seeking to achieve an inclusive society in which the rights of all are equally recognised and in which inequality is reduced. It is on that basis that the Executive has put forward its proposals as set out in the Bill. I of course recognise the concerns that have been expressed about various aspects of those proposals. The Committee’s consideration of the Bill has raised important issues and we have considered these carefully. However, I believe that the basic case for the SCHR remains strong and that it should be possible to address the Committee’s concerns while still enabling our overall objectives for the SCHR to be secured.

†428

The Executive’s detailed response to the specific issues raised by the Committee in the Report is set out in the attached annex. However, to summarise the main points I would advise that the Executive is willing to make the following changes to the Bill:

• creating a Commission instead of a Commissioner;

• redefining the SCHR’s law review function to make it clear that this would be discretionary rather than mandatory and subsidiary to the SCHR’s core promotional and awareness-raising role;

• requiring the SCHR to publish a strategic plan, on which the SCHR would consult before laying it before the Parliament;

• including specified grounds for dismissal of Commissioners, adding a statutory requirement for the SPCB to approve the SCHR’s budget, and providing that the SPCB will appoint the SCHR’s accountable officer; and

• removing the requirement for the SCHR to give prior notice when seeking access to places of detention.

We are working to develop these proposed changes with the aim of presenting suitable amendments at Stage 2 should the general principles of the Bill be agreed at Stage 1. I would welcome any further comments that the Committee might have in relation to these matters that could help us to produce mutually acceptable amendments.

I confirm that the Executive would be willing to consider any suggestions both in connection with these particular points and for other changes that might further improve the Bill. In the meantime I hope that our willingness to make the specific changes mentioned above is helpful to the Committee, and will enable members to support the general principles of the Bill at Stage 1.

ROBERT BROWN

†429

ANNEX SCOTTISH COMMISSIONER FOR HUMAN RIGHTS BILL

EXECUTIVE RESPONSE TO SPECIFIC ISSUES IN STAGE 1 REPORT

Section 3: Duty to monitor law, policy and practice

The Committee recommended that the Executive reconsider this part of the SCHR’s functions, given the number of existing bodies that already keep the law under review. [Paras 98-105]

1. The Executive reiterates that the intention is not that the SCHR would be expected to keep all of Scots law under review all of the time. The SCHR would be free to choose which issues he or she would examine, and it is expected that the SCHR would decide what work to undertake in this area as part of setting his or her overall priorities.

2. Keeping the law under review is widely recognised as an important role for national human rights institutions: the UN’s Paris Principles and guidance issued by the Commonwealth Secretariat indicate that such institutions should review domestic law and practice on an ongoing basis. The Executive remains of the view that this should form part of the SCHR’s remit. While, as the Stage 1 Report points out, a number of bodies with a law review function already exist none of them have an explicitly human rights remit. Given the important place of human rights in the Scottish legal system the Executive believes that it would thus be beneficial for the SCHR to have a law review role from their specific human rights perspective. In particular, it is important that the SCHR should be able to consider and report on the compatibility with human rights of particular aspects of Scots law. The Executive therefore remains of the view that some provision for such a role should remain in the Bill.

3. Nevertheless, the Executive has noted the concerns about the apparent width of this duty as presently described in the Bill that were expressed during Stage 1. The Executive is prepared to consider alternative formulations that would retain the principle of the SCHR being able to undertake such activity while expressing it in a less prescriptive and all-embracing way, and will bring forward appropriate amendments for consideration at Stage 2 should the general principles of the Bill be approved at Stage 1.

Governance and accountability issues

The Committee recommended that the SPCB should give detailed consideration to the practical benefits which might be realised from the co-location of the proposed Commissioner with either the SPSO in Edinburgh or the CEHR in Glasgow. [Paras. 106-112]

4. The Executive agrees that close co-operation between the SCHR and other relevant bodies such as the Commission for Equality and Human Rights (CEHR) and the Scottish Public Services Ombudsman (SPSO) will be vital. In particular, ensuring close working between the CEHR and the SCHR has been a high priority for the Executive and the UK Government since inception of the CEHR proposals.

5. The Executive believes that all public bodies should examine the scope for improving efficiency and service delivery through co-operative arrangements such as sharing of support services and co-location where appropriate. As well as this general principle, which the Executive

†430

would expect to apply to the SCHR as to other bodies, the Executive recognises that co-location of the SCHR with the CEHR could facilitate the close working relationship between them that is generally agreed to be necessary. Similarly, since much of the focus of the SCHR’s work would relate to the policies and practices of public authorities there could be an argument in favour of co-location with the SPSO. Therefore, the Executive agrees in principle that co-location of the SCHR with the CEHR or the SPSO ought to be considered.

6. That does not mean that the Executive necessarily endorses co-location of the SCHR with either the CEHR or the SPSO as being preferred options. This is because this is not directly a matter for the Executive, since a decision on the SCHR’s location will be for the SCHR themselves to decide in conjunction with the SPCB. (To secure proper accountability the Executive has agreed that decisions on office location would be subject to the SPCB’s approval, and has included a provision to that effect in the Bill.) In any case, the Executive expects that a decision on the SCHR’s location would not be taken until specific options, which might well include co-location with the CEHR or SPSO, had been identified, costed and evaluated.

7. In this connection it is worth noting that while it has been announced that the CEHR’s main Scottish office will be in Glasgow, a decision on specific premises will not be taken for some time. The Executive is in close touch with the UK Government team responsible for setting up the CEHR, and in particular has registered with that team the importance of the possibility of co-location with the SCHR being taken into account before any final decisions are taken. The Executive will continue to keep in touch with developments here, and will liaise with the SPCB as appropriate.

The Committee invited the Executive to review the accountability mechanisms for all commissioner appointments in light of the Procedures Committee report into procedures for Crown appointments and to bring forward appropriate amendments to the Bill at Stage 2. The Committee also recommended that the Executive conduct a review of all existing Commissions, Commissioners and Ombudsmen. [Paras. 113-116]

8. The Executive recognises the importance of achieving an appropriate balance between the independence of commissioners and securing their appropriate accountability to the Parliament. The arrangements proposed for the SCHR in the Bill are based on those already in place for existing commissioners and ombudsmen who are accountable to the Parliament, and it was therefore the Executive’s understanding that the SCHR proposals should be acceptable to the Parliament in the same way as those for existing commissioners etc. The Executive of course recognises the concerns that have recently been expressed about accountability and governance issues both in relation to the SCHR and more generally; but it is arguable that any substantive changes to meet those concerns should not be made for the SCHR in isolation but rather as part of consideration of the wider issues. That would also seem to be the Committee’s view judging by the terms of the Stage 1 Report.

9. The Executive is presently considering its response to the Procedures Committee’s Report on procedures for Crown appointments, which I understand is to be debated by the Parliament in the near future. It would be inappropriate for me to comment on that Report in advance of the Executive issuing its response. Nor would it be appropriate for the Executive to undertake to bring forward amendments to the SCHR Bill in response to the Report before the Parliament had itself taken a view on the Report’s recommendations. Amendments relating to commissioners other than the SCHR would in any case probably be outwith the scope of the Bill.

10. It would also not be appropriate for the Executive itself to review all existing commissioners etc, whether generally or purely in relation to their accountability mechanisms, as recommended by the Stage 1 Report, since the holders of these appointments are accountable to the Parliament rather than the Executive. Any such review might therefore require to be undertaken by the Parliament

†431

itself. The Parliament’s Finance Committee recently began such a review in relation to accountability and governance of commissioners, and the Executive looks forward to its outcome.

11. It will primarily be for the Parliament to decide what, if any, changes to make to existing arrangements in response to the Procedures and Finance Committee reviews. However, the Executive does have a close interest in these issues and will therefore keep in touch with developments here. Should the Parliament reach conclusions arising from either or both of these reviews before completing its consideration of the SCHR Bill, the Executive would be willing in principle to consider any amendments to the Bill that might be suggested to implement those conclusions. However, it may be more likely that any such changes in respect of the SCHR would be effected after enactment of the Bill, should it be passed, as part of an overall package to make similar changes to other existing commissioners etc.

The Committee recommended that the SCHR should be required to prepare a strategic plan for a rolling three year period; to consult on this plan and to lay the finalised plan before the Parliament. [Paras. 117- 118]

12. The Committee’s recommendation here stems from the placing of a similar duty on the CEHR under the Equality Act 2006. The Executive has argued that placing such an explicit duty on the SCHR is unnecessary given the proposed power in the Bill for the Parliamentary corporation to give the SCHR directions as to the content of SCHR annual reports, since that power could be used to require the SCHR to include in those reports information similar to that which would appear in a separate “strategic plan”. However, I recognise that the Committee did not feel that this position goes far enough. I also note that the recent Procedures Committee Report referred to above has questioned the appropriateness in general terms of statutory powers of direction in relation to annual reports, although the Parliament has yet to take a view on this or the other recommendations of that Report.

13. The Executive believes it reasonable to expect that the SCHR should produce some form of strategic forward plan. I would expect this to happen in practice even without a legal requirement for the SCHR to do so, for instance to inform discussions with the parliamentary authorities over the SCHR’s budget. However, I appreciate the Committee’s desire for a statutory framework for the production of such plans, and confirm that the Executive is willing to meet that desire by bringing forward amendments at Stage 2 to place such a duty on the SCHR.

14. As regards the precise content of such amendments, the relevant provisions in the Equality Act are quite detailed and might be thought to be overly complex. A matter for consideration in preparing amendments will therefore be whether the Bill could be amended to meet the Committee’s concerns without imposing what might be an unduly complicated procedure on the SCHR. The Executive has already discussed the strategic plan issue in general terms with the SPCB at official level, and will consult the SPCB in developing the amendments to be brought forward at Stage 2.

Financial control issues

The Committee endorsed proposals for change made by the Scottish Parliament Corporate Body relating to the balance between the independence and accountability of the SCHR. [Paras. 119-133]

15. The Report discussed three specific proposals for change under this heading:

• that it should be made clear on the face of the Bill that the SCHR’s budget would require the approval of the SPCB (a similar point was made by the Finance Committee in its Report on the Bill’s Financial Memorandum);

†432

• that the specific grounds on which the SCHR could be removed from office should be set out on the face of the Bill; and

• that the Accountable Officer for the SCHR should be appointed by the SPCB.

16. The Executive agrees with the Committee and the SPCB that in principle changes of the kind proposed would maintain an appropriate balance between the SCHR’s independence and his or her accountability to the Parliament, and in particular would be compatible with the Paris Principles. As regards the detail of each proposed change:

• as stated in its evidence to the Committee and also to the Finance Committee, the Executive has always expected that the SCHR’s budget would in practice require SPCB approval as part of the normal arrangements for parliamentary oversight and accountability. However, I appreciate the desire, arising not just from consideration of the SCHR Bill but also from concerns expressed in other contexts and especially consideration of the SPCB’s budget in general and that of the Scottish Commissioner for Children and Young People in particular, for the position to be put beyond doubt by having an explicit statutory requirement for SPCB approval. The Executive is willing in principle for the Bill to be amended in this way, subject to a suitable wording being devised and agreed with the SPCB;

• the Executive has no objection in principle to the Bill being amended so as to provide for specific grounds for dismissal of the SCHR similar to those stipulated for the Children’s Commissioner. However, since the Stage 1 Report was published the Procedures Committee has published its report on Crown appointments as mentioned in paragraph 9 above. That Report made a similar recommendation as regards commissioners etc. more generally, recommending that where such provision did not already exist the legislation governing existing office-holders should be amended to stipulate specific grounds for dismissal similar to those set out in the Commissioner for Children and Young People (Scotland) Act 2003. Therefore, it would seem appropriate that a final decision on whether to seek to amend the SCHR Bill in this way should not be taken until the Parliament has reached a view as to the desirability or otherwise of this proposed change as regards commissioners generally in response to the Procedures Committee Report. The Executive regards this as essentially a matter for the Parliament, and so is willing to proceed in relation to the SCHR in line with whatever approach the Parliament wishes to take for commissioners generally; and

• the Executive is content for the accountable officer for the SCHR to be appointed by the parliamentary corporation rather than a particular person being designated on the face of the Bill. Should the general principles of the Bill be approved at Stage 1 we are therefore willing for the Bill to be amended accordingly at Stage 2. Our expectation is that in practice the head of the SCHR would probably be appointed as the accountable officer, in line with the practice for existing commissioners and the SPSO; but this would be a decision for the SPCB.

17. The Stage 1 Report said that the Committee looked forward to receiving appropriate amendments on these issues from the SPCB at Stage 2 should the general principles of the Bill be approved at Stage 1. The Executive is willing to work with the SPCB in the preparation of such amendments with a view to arriving at mutually agreed solutions in time for Stage 2.

18. Some of those who submitted evidence on the Bill questioned the need to have a statutory requirement for a chief executive, although this point did not explicitly feature in the Stage 1 Report. The Executive believes that the SCHR would probably still wish to appoint a person to fulfil such a role although not necessarily with the title of “chief executive”. However, we are willing to leave this for the SCHR to determine. The Executive is therefore content for this requirement to be removed from the Bill and will bring forward an appropriate amendment at stage 2.

†433

Funding issues

The Committee recommended that the Executive and the SPCB should jointly re-examine the proposed budget for the SCHR and provide the Committee with a clear justification for the figures arrived at. [Paras. 134-137]

19. The breakdown of SCHR expenditure provided by the Executive in the Financial Memorandum to the Bill is purely illustrative, as the Memorandum itself makes clear. However, the Executive has noted the specific comments made in the Stage 1 Report and also by the Finance Committee in its consideration of the Financial Memorandum. I confirm that the Executive proposes to have further discussions with the SPCB, with the aim of responding to the Committee before Stage 2 as requested.

The Committee considered that there should be a memorandum of understanding between the SCHR and the SPCB to determine how projected or actual overspends will be dealt with. [Paras. 138-140]

20. This appears to be a reasonable suggestion, although it is not directly a matter for the Executive or indeed for the Bill since it relates to the practical relationship between the SCHR and the SPCB. It therefore lies with the SPCB to decide how this might be taken forward.

21. I would reiterate that in normal circumstances overspends should not occur, which I understand also to be the view of the Committee; and certainly I would expect every effort to be made to avoid this possibility through the establishment and operation of efficient financial management systems. However, I agree with the Committee that it seem prudent to make some arrangements for dealing with unforeseen contingencies; although in doing so every effort should be made to avoid any suggestion that such overspends are expected as a matter of course let alone regarded as acceptable.

A Commissioner or an alternative model

The Committee recommended that the Executive reconsider whether a Commissioner would be preferable to a Commission or an alternative statutory body. [Paras. 141-149]

22. The Executive had framed the Bill in terms of creating an office of “Scottish Commissioner for Human Rights”, instead of a Scottish Human Rights Commission as originally proposed, mainly because this reflected the existing model adopted by the Parliament in previous cases such as the Scottish Public Sector Ombudsman. However, I appreciate that the Committee has concerns about the potential difficulties in entrusting a single person with the tasks proposed for the SCHR, even though under our proposals the Commissioner could be supported by up to 2 deputy Commissioners.

23. I note that the Committee did not make a firm recommendation that a Commission should be created instead of a Commissioner, instead asking the Executive to reconsider its position in the matter. However, we have taken note of the reservations expressed by the Committee and others about the current proposals. The Executive has considered the matter further in light of those reservations, and I can confirm that we are willing to bring forward amendments at Stage 2 to establish a Commission. We propose that this would include provision for the Commission to have up to 5 members (who would not necessarily be called “Commissioners” - they could simply be called “members” or some other title). Those members could be full- or part-time: although in practice the head of the Commission may be likely to be full-time, at least most of the other members might be part-time.

†434

Relationship with the courts

The Committee asked for clarification on the powers of the SCHR to intervene in court proceedings and the equivalent powers of the Commission for Equality and Human Rights. [Paras. 150-158]

24. The Report said that the Committee had requested, but was yet to receive, clarification in writing about the powers of the Commission for Equality and Human Rights (CEHR) to intervene in court proceedings, and in particular whether the CEHR would be able to intervene in criminal proceedings.

25. This was in fact dealt with in my letter to you of 4 February. As advised in that letter, the CEHR will be able to intervene in legal proceedings where it appears to the CEHR that the proceedings are relevant to a matter in connection with which the CEHR has a function; this by virtue of section 30 of the Equality Act. However, section 30 also provides that this is subject to any limitation or restriction imposed by virtue of an enactment or in accordance with the practice of a court. The Executive’s understanding is that the practice of the criminal courts in England and Wales does not allow intervention by third parties, the only exception being the House of Lords (which can hear appeals in criminal cases). Therefore, the CEHR will not be able to intervene in criminal proceedings except for appeal proceedings in the House of Lords.

26. The Committee also asked for clarification on whether the SCHR would be able to intervene in proceedings arising from a reference to the court by the Lord Advocate arising from criminal proceedings.

27. The point at issue concerns section 123 of the Criminal Procedure (Scotland) Act 1995. Section 123(1) of the 1995 Act provides that:

"Where a person tried on indictment is acquitted or convicted of a charge, the Lord Advocate may refer a point of law which has arisen in relation to that charge to the High Court for their opinion..."

28. Section 123 therefore enables the Lord Advocate to ask the court to clarify the criminal law on a particular issue. While such a reference will be made in response to a specific case, it will not itself reach a decision on a specific criminal charge since the case in question will have been determined before the reference is made. Section 123 provides that an opinion given in response to a reference shall not affect the acquittal or, as the case may be, conviction in the trial concerned. However, the Executive’s understanding is that the European Court of Human Rights would still view consideration of a reference as falling within the category of “criminal proceedings” for the purposes of the European Convention on Human Rights, given its categorisation as such under domestic law and its purpose in clarifying a point of criminal law.

29. The Executive’s view is therefore that, as with criminal proceedings generally, the SCHR would not be able to intervene in the court’s consideration of a reference from the Lord Advocate. This is because section 11(1) of the Bill would not empower the SCHR to intervene, since consideration of a reference would not be classed as “civil proceedings”. Nor is there an existing practice of the court that would allow the SCHR to intervene, since section 123 of the 1995 Act only provides for the accused or counsel to appear in such cases.

30. However, the Executive’s understanding is that the SCHR would in principle be capable of being appointed as an amicus curiae in proceedings to consider a Lord Advocate’s reference. The High Court has an inherent ability to appoint any person it sees fit to help and advise the court in particular proceedings, and the SCHR would be able to take advantage of this by being appointed as

†435

an amicus curiae in proceedings arising from a reference in the same way as in legal proceedings generally.

31. Incidentally, the Report also mentioned the questions raised by the Law Society of Scotland and the Faculty of Advocates around the scope of the SCHR’s proposed power to intervene in court proceedings, and in particular the exclusion of the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords from this power as expressed in the Bill. I confirm that the explicit intervention power to be conferred by section 11(2) of the Bill would not enable the SCHR to be able to intervene in proceedings before the Privy Council or the House of Lords, since under section 11(9) of the Bill that power would only apply to proceedings in the Court of Session, sheriff court and Land Court. In fact the Bill could not create a power for the SCHR to intervene in proceedings before the Privy Council or the House of Lords, since their procedures are reserved matters.

32. However, section 11(8) of the Bill provides that the power to intervene contained in section 11(1) is without prejudice to the SCHR’s capacity to intervene in any court or tribunal under an enactment or the practice of that court or tribunal. Therefore, where a court or tribunal already has a mechanism for intervention, the SCHR will be able to take advantage of it even though the court in question is not mentioned on the face of the Bill. Our understanding is that there is at present no provision for intervention in Privy Council proceedings; so the SCHR, like any other third party (including the CEHR), would not be able to intervene in such proceedings. However, the Appellate Committee of the House of Lords does allow interventions and so the SCHR would be able to intervene in its proceedings.

The Committee sought clarification of the position vis-à-vis the raising of legal actions in human rights cases in Scotland. [Paras. 159-165]

33. I confirm that the Executive’s understanding of the position is as set out in paragraph 164 of the Committee’s Report. Again, this was dealt with in my letter to you of 4 February. I confirm in particular the Executive’s view that any change to enable the SCHR to raise such actions in his or her own name would have to be effected by legislation at Westminster, since that would contravene the “victim test” laid down by section 7 of the Human Rights Act 1998 and amendment of that Act is a reserved matter.

34. The Report mentioned the particular point of whether it might be possible to confer such a power on the SCHR through subordinate legislation at Westminster made under section 104 of the Scotland Act. That section provides that:

“Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament…”

35. Having considered the matter further the Executive’s view remains as explained in my letter of 4 February and quoted at paragraph 164 of the Report, namely that we are not confident that section 104 could be used in this way. In our view it is questionable whether the conferring of such a power could be said to be “necessary or expedient” in consequence of any provision of the Bill, since the SCHR would be able to exercise his or her functions in terms of the Bill without having such a power.

36. My letter of 4 February confirmed that the consent of the SCHR would be required before the CEHR could raise a legal action on human rights grounds in relation to a devolved matter. To answer the point in the third sentence of paragraph 165 of the Committee’s Report, it follows that the SCHR would have power to give such consent.

†436

Power to conduct inquiries

Committee members had a range of views on the scope of the Commissioner’s proposed power to conduct inquiries. [Paras. 166-173]

37. I note that the Committee expects to give this matter further consideration at Stage 2, and look forward to hearing any further comments that the Committee may make on the subject.

Places of detention

The Committee considered that the Commissioner should be able, by law, to enter places of detention without giving any prior notice. [Paras. 174-180]

38. The Bill would give the SCHR a legal power to enter places of detention for the purposes of an inquiry. Schedule 3 to the Bill currently provides that the SCHR would only be able to exercise this power in any particular case after giving at least 14 days’ written notice.

39. I recognise the Committee’s concerns about this requirement. The Executive has already said that it would expect that in practice the SCHR would be given access to places of detention on request without the need for such notice. Having considered the issue further, we are prepared to dispense with the statutory need for prior notice so that the SCHR would have a legal right to enter places of detention immediately on request as the Committee has requested. Should the general principles of the Bill be approved, the Executive will bring forward appropriate amendments to that effect at Stage 2

†437 EXTRACT FROM THE MINUTES OF PROCEEDINGS

Vol. 3, No. 71 Session 2

Meeting of the Parliament

Wednesday 3 May 2006

Note: (DT) signifies a decision taken at Decision Time.

Scottish Commissioner for Human Rights Bill – Stage 1: The Deputy Minister for Education and Young People (Robert Brown) moved S2M-3908—That the Parliament agrees to the general principles of the Scottish Commissioner for Human Rights Bill.

After debate, the motion was agreed to ((DT) by division: For 69, Against 18, Abstentions 25).

Scottish Commissioner for Human Rights Bill: Financial Resolution: The Minister for Justice (Cathy Jamieson) moved S2M-3948—That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Scottish Commissioner for Human Rights Bill, agrees to any expenditure of a kind referred to in paragraph 3(b)(ii) of Rule 9.12 of the Parliament’s Standing Orders arising in consequence of the Act.

The motion was agreed to ((DT) by division: For 70, Against 21, Abstentions 24).

†438 25139 3 MAY 2006 25140

Scottish Commissioner for society in the way that many had hoped. Research shows that public bodies in Scotland and Human Rights Bill: Stage 1 throughout the United Kingdom are not always sufficiently aware of what human rights mean for The Presiding Officer (Mr George Reid): The them. They need more support and assistance to next item of business is a debate on motion S2M- make sure that human rights are properly reflected 3908, in the name of Robert Brown, that the in their policies and practices. That point was Parliament agrees to the general principles of the echoed specifically by the chief commissioner of Scottish Commissioner for Human Rights Bill. the New Zealand Human Rights Commission in her evidence to the committee. New Zealand 14:41 public officials, she said, prior to the establishment of the commission, had little concept of human The Deputy Minister for Education and rights, despite the statutory duties ostensibly Young People (Robert Brown): It gives me great placed on them. pleasure to open the stage 1 debate on the general principles of the Scottish Commissioner There is another, more insidious problem, in that for Human Rights Bill. It is a long way from the ordinary people are often not sufficiently aware of day, back in 1999, when those organisations and what human rights really mean. individuals with an interest set up the cross-party Alasdair Morgan (South of Scotland) (SNP): If group on human rights of which I was chair during local authorities are falling down on those duties, the first session of Parliament. The bill has also why does the Executive not do something about had a long gestation through two consultation it? If they were falling down on any other aspect of papers. their performance, the Executive would be in there Many things have moved on during that time, sorting it out. Surely those duties are just as much not least the Parliament’s confidence and maturity. the responsibility of the Executive as any other We have more experience of providing remedies part of a local authority’s duties. to people in Scotland for things that go wrong and Robert Brown: That is, of course, why we are harm them or deprive them of the services to establishing the commission in the first place. which they are entitled—not least those who are [Interruption.] Nevertheless, the member raises an vulnerable or who live in deprived communities or important point. We aspire, as we do in so many circumstances. Perhaps we also have more areas, to the highest standards and the experience of the limits of such remedies. Some of commissioner will play a reasonable and sensible that experience and the wider agenda have fed part in helping to bring that about. I am not talking into the issues raised by the Justice 1 Committee only about public authorities in the sense of local and the Finance Committee, to which I will return authorities; I am talking about bodies that provide shortly. public services right across the board. Today’s debate is a chance to remind ourselves We introduced the legislation to raise awareness of the high aspirations on which the Parliament of the benefits that a human rights culture can was founded: a belief in equality of opportunity bring, to challenge misconceptions, and to show and the worth of every individual in our society; the that human rights are about not just litigation but need to respect other people, particularly those everyday life, and that they are of particular who are victims or who do badly out of the system; importance to ordinary people in ordinary and the way in which human rights are woven into communities across the land. the very fabric of our constitutional settlement. Mr Bruce McFee (West of Scotland) (SNP): When I gave evidence to the Justice 1 Will the minister take an intervention? Committee in January, I made the point that human rights have a double function. They provide Robert Brown: I would like to make some more individuals with rights that are declared and progress. enforced daily in our courts. They also provide a I am grateful to the Justice 1 Committee for its basis for qualitative improvement in the thorough consideration of the bill. The process of performance of public authorities. That is why the engagement with the issues that the committee European convention on human rights was raised has led us to propose significant enshrined in our domestic law. It creates a legal improvements in the architecture and governance framework against which the actions of public of the commissioner proposal, which were outlined authorities can be judged, and so helps to make in summary in my letter to the convener on Friday. authorities more accountable to the people whom The committee’s stage 1 report recognised that an they are there to serve. independent human rights body, properly However, that is not enough by itself. Human constituted and empowered, could deliver rights have not yet become embedded in our significant benefits. As the submission in favour of the bill from the equalities commissioners—who †439 25141 3 MAY 2006 25142

are knowledgeable in this area—pointed out, the Parliamentary Corporate Body must approve the Equality Act 2006 that establishes the Great commission’s budget. That will make it clear that Britain-wide commission for equality and human the final say on how much money the commission rights was designed to take account of our can spend will rest with the parliamentary proposals for a Scottish commissioner, without authorities. We will remove the explicit which there would be a significant shortfall in requirement for the commission to have a chief human rights promotion and protection in executive and provide for the corporate body to Scotland. appoint the commission’s accountable officer. We also agree that the bill should specify the grounds Mr John Swinney (North Tayside) (SNP): Will on which members of the commission might be the minister take an intervention? dismissed. Our proposed changes echo wider Robert Brown: I will take John Swinney’s concerns that have arisen in other comments that intervention after I have finished this point. have been made on not just the proposed new commission but commissioners more generally. One of the committee’s main concerns was We will also introduce amendments to define the about architecture, by which I mean how the commission’s law review function. The commissioner would relate to Parliament and the amendments will make it clear that that function structures within which the body would carry out will be discretionary rather than mandatory and will its work. We propose to meet that concern by be subsidiary to the commission’s core reverting to the idea of a commission, rather than promotional and awareness-raising role. Finally, a commissioner, and by linking the commission’s we will remove the need for the commission to work to a strategic work plan. give prior notice before exercising its right to enter Mr Swinney: The minister said that, if the bill places of detention. was not passed, the absence of a commissioner in The commitments that I have outlined are wide- Scotland would be a major pitfall. Is he suggesting ranging and stem directly from the Justice 1 that, without the bill, there would be no focus on Committee’s deliberations. I hope that they will the promotion of human rights on the part of the provide assurance that we are responding Scottish Executive and local authorities? appropriately to the concerns that have been Robert Brown: I am not suggesting that at all. I expressed. Nevertheless, I believe that the overall am slightly surprised at the line that SNP members case for a new human rights body remains strong. have taken this afternoon, particularly given the As the Justice 1 Committee report pointed out, a support that Roseanna Cunningham, Linda number of bodies in Scotland already deal with Fabiani and other SNP members gave when the human rights issues, but no single body in consultation paper was debated back in 2000. Scotland is charged specifically with promoting awareness and understanding of, and respect for, I want to dwell further on how the proposed human rights. The bill is aimed at providing such a arrangements will work. The commission’s body. The new commission will not replace or strategic plan will be reviewed at regular intervals, duplicate the functions of existing bodies and it will published for consultation and laid before the not purport to be the single authoritative voice on Parliament. That should ensure that the human rights. Rather, it will provide a source of commission’s work is anchored in a common expertise in human rights law and practice, which understanding of what is needed and is not at the is relatively underdeveloped in Scotland, and it will whim of an individual with particular hobby-horses work with existing bodies and the public to help to to ride. It will also help to make it clear that, secure respect for human rights across the board. although the commission will be rightly independent of both the Executive and the In creating such a body, we are following the legislature, its work plan will be able to be debated lead that has already been taken by many other and influenced by both the Parliament and outside countries. Human rights institutions do not exist bodies. The commission will have up to five only in countries troubled by conflict and division, members. It is envisaged that it will have a full- and I had hoped that the SNP would have time chairman or chief commissioner—we are recognised that. Such institutions also make an happy to discuss with the committee what the title invaluable contribution in confident, vibrant should be—and that its other members will be part western democracies such as Canada, Australia time. The change could, therefore, result in and New Zealand, by helping to address issues administrative cost savings. such as people trafficking, the rights of the elderly and other vulnerable groups, challenges to As it is important that all institutions that exercise telephone masts in local communities, and the statutory powers and spend public funds are vindication of land rights. Our commission will add properly held to account, we want to strengthen substantial value to the quality of our public the governance arrangements in line with the administration, by helping public bodies to committee’s report. We propose to include an recognise and deal with human rights express requirement to the effect that the Scottish †440 25143 3 MAY 2006 25144 shortcomings in advance and in a cost-effective Margaret Mitchell: The context was different. way that helps to avoid expensive and That is important. unnecessary legal challenges. The standing, The Deputy Presiding Officer (Murray Tosh): influence and success of the commission will flow Order. from the quality of its work and contribution. Robert Brown: With great respect to Margaret Margaret Mitchell (Central Scotland) (Con): I Mitchell, I remind members that the context was ask the minister to consider the fact that there will very clear. It was to do with the consultation be huge disappointment from the general public document on the bill as it was then proposed. I when they realise that, despite £1 million per hope that, despite what appears to be a fairly annum being spent on the creation of the negative reaction from some Opposition members, commission—or commissioners—it will have no the bill will attract all-party support today. power to take up individual cases. Human rights are the basis of social justice. Robert Brown: That issue was raised in When they are breached, we all suffer, but the committee, as Margaret Mitchell is well aware. It poor and the powerless suffer most. Human rights was mentioned against the background of there should be the drivers for public services that we all being a number of other recourses already want to develop and improve, such as the available through the legal system and the protection of children, empowering adults with Scottish public services ombudsman, who can incapacity, raising standards in care services and take up individual issues in that way. I accept, much more, and the aim must be to ensure that however, that there remains controversy about the right balance is struck between the rights of that aspect of the bill. individuals and the interests of society. The One of the issues that exercised the Justice 1 Scottish human rights commission will help to Committee was the interrelation with other achieve that. It is a necessary and important part commissioners and similar bodies. The provisions of our democracy, not as a partial advocate for in the bill encouraging the use of protocols to any particular interest group, but as a champion of avoid duplication and the debate about co-location high standards and good practice for us all. with the GB commission and/or the ombudsman I would like to pay tribute to the work of the hard- recognised that. However, I can tell members that, pressed bodies that have campaigned for the although the detailed decisions are for the Scottish commission, particularly the Scottish Human Parliamentary Corporate Body and the Rights Centre—which unfortunately was recently commission itself, we have discussed the matter forced to close—Amnesty International Scotland with both the GB commission and with Professor and the Scottish human rights forum. I hope that Alice Brown, so that co-location options are our proposals, with the changes that I have available—for example, in Glasgow, where the described, will be supported by the Parliament, Scottish office of the GB commission is to be and I look forward to further constructive housed. We entirely support, and have supported discussions and engagement with the Justice 1 from the beginning, that kind of approach to Committee, and with other members with an matters, as well as the idea of a one-stop shop interest in the matter, at stage 2. that goes with it. I move, I would like to return to what I said about the other parties. When the matter was debated, at That the Parliament agrees to the general principles of some length, back in 2000, there was substantial the Scottish Commissioner for Human Rights Bill. all-party support for the commission from leading spokespeople from the two Opposition parties: 14:54 David McLetchie, Lord James Douglas-Hamilton, Stewart Stevenson (Banff and Buchan) Roseanna Cunningham, Michael Matheson and (SNP): I start by telling the minister that there are Linda Fabiani in particular, most of whom are no sceptics of any kind on the SNP benches when lawyers. it comes to the importance of human rights. The Margaret Mitchell: Will the minister give way? consensus to which the minister referred was genuine, based on the statement that I have just Robert Brown: No, I have already given way to made. However, only the title of the bill that we Margaret Mitchell. Most of those members are have before us today—if we are to be cynical lawyers and people with experience in the field. about it—relates to that previous consensus. The Margaret Mitchell: That comment is a content is the issue that we are discussing today, misrepresentation. and it was the content and detail of the bill that exercised the Justice 1 Committee—other Robert Brown: All that I can say to Margaret members of which will no doubt express their Mitchell is that she should read the debate. views during the debate—when, for the first time since the Parliament was reconvened in 1999, the †441 25145 3 MAY 2006 25146

committee failed to recommend to Parliament that work rather than, as Stewart Stevenson suggests, an Executive bill be supported. The committee has substitute for it? not, of course, said that the bill should be voted Stewart Stevenson: I understand why Jim down, because we hope that the minister can Wallace might say that, but I am not at all clear rescue the bill from the sloppy thinking that that that is the purpose of the bill. The commission currently characterises it. is being created to book advertising space and to Some of my SNP colleagues do not take the guide and mentor public authorities. Incidentally, it softly, softly approach that I have just outlined, as will not guide and mentor private authorities and they see little merit in the bill. However, we must private companies, although they may arguably be move forward. The SNP will not support the bill at responsible for more human rights abuses than decision time. We will abstain and wait to see public services, which generally achieve high whether the minister can construct a bill that is standards. worthy of support. One million pounds or so is Mr Swinney: Will the member give way? allocated for the bill, but we see little value in what it is intended to spend that money on, so we will Phil Gallie (South of Scotland) (Con): Will the not support the financial resolution either. member give way? We have several concerns. First, much of what Stewart Stevenson: John Swinney asked first, we think the bill will do appears to be the job of but I will come back to Phil Gallie. members of this Parliament. The minister referred to people trafficking and land rights, subjects with Mr Swinney: In response to Mr Wallace’s point, which this Parliament has engaged and which will Mr Stevenson reflect on the fact that our own touch on human rights. Presiding Officer has a responsibility, in respect of the Parliament’s legislative process, to guarantee The “Code of Conduct for Members of the that all our legislation is ECHR compliant? Does Scottish Parliament” places upon us as that not give us an assurance with regard to our parliamentarians a public duty legislation of which we should not only be proud “to act in the interests of the Scottish people and their but which we should vigorously defend? Parliament”. Stewart Stevenson: Mr Swinney makes a good That is but one of the duties. The fourth paragraph point. Of course, our Presiding Officer bases his in the key principles of our code of conduct decisions on the legal advice that he receives. outlines our “Duty as a Representative”. In that Phil Gallie: I want to make a point similar to regard one of our roles is to assist people to John Swinney’s. The fact is that the legislation to exercise their human rights. which Mr Wallace referred is still with us. It was A challenge that the minister faces as the bill shown to be compliant without the need for a goes through the parliamentary process is to human rights commissioner. persuade members of the Parliament that he is not Stewart Stevenson: One of the interesting simply trying to take a burden off our shoulders things that the minister said in his opening and place it on another’s so that our life as MSPs remarks was that the courts are the first recourse. is simpler and less involved with human rights. It is The Justice 1 Committee also comments on that in fundamental to what we do as members of the its report. With European developments, 38 Parliament that we carry the burden of human Scottish cases have touched on the matter of rights on behalf of our constituents and others. human rights since 1999. Mr Jim Wallace (Orkney) (LD): I appreciate I wish to pose a genuine question. What are that Stewart Stevenson was not in the Parliament human rights? That is perhaps not yet fully at the time, but he might recall that the first understood. A variety of people have commented legislation ever presented to it was the Mental that one of the roles of the human rights Health (Public Safety and Appeals) (Scotland) Bill, commissioner—or the commission as it now to block a loophole in mental health legislation. I appears to be—might be to disabuse the public of was responsible for that bill. We had to be careful, their belief that certain things are human rights. given the nature of the legislation, that it was One example that has been much debated ECHR compliant. I remember that representations recently is the “human right” to smoke in a pub, came from his party about the fact that there was and thus contaminate the air breathed by people not an independent body to which it could go to who are not smokers. To talk in terms of the check whether the Executive’s claim that the bill commission or commissioner downplaying what was compliant with human rights was accurate. people think of as their human rights is perhaps to Does the member not think that a human rights turn the argument on its head. It would be useful commission could be a useful resource that would to hear more of the positive advantages of such a enable the Parliament to improve and enhance its body. In paragraph 90, the committee talks about

†442 25147 3 MAY 2006 25148 the promotional and awareness-raising role, consideration of the effects, has had a number of saying: unintended and undesirable—if not downright “Members of the Committee have concerns that the disastrous—consequences, including for the laudable aims which lie behind the Bill may be outweighed, appointment of temporary sheriffs, sentences for in practice, by a number of unwelcome consequences.” life prisoners and the presumption against bail for certain categories of offender. That is what I have been talking about. What is this human rights culture? The public simply do Clearly, the issue is not that human rights or the not know what human rights they have. convention’s provisions are not acted on in Scotland. The Scottish Executive is using prime There is also the difference between what Scottish parliamentary time to legislate for the Westminster is doing and what is happening in the introduction of a Scottish commission or bill. For a variety of reasons, the two will be commissioner for human rights purely and simply unhappy bedfellows. Getting our commission and because, in drafting the United Kingdom Equality the Westminster commissioner located in the Bill, a reference was made to the creation of a same building will be a useful way of moving statutory body that would grant permission for the forward and of ensuring that we at least have UK’s Scottish commissioner to become involved in some good working relationships. devolved issues—generally where those issues The minister said that at the core of the bill is overlap with reserved issues. support and assistance in policies and practices Robert Brown: That is simply not so. I already for public authorities. If that is all that we are explained what a lengthy process there has been. doing, we are simply not lifting our eyes high There is a commitment in the partnership enough or being ambitious enough. A million agreement and there have been two consultation pounds’ worth of advertising will not change the papers. The Great Britain commission has human rights culture in Scotland; it will not make a overtaken the Scottish one but has left a gap in real difference, if the Executive believes that we the light of our long-standing commitment to have to make one. The Scottish National Party is legislate as we are doing. withholding its support from the bill in its present form. The minister has every opportunity to lodge Margaret Mitchell: I do not accept that and I will amendments that will cause us to support it at a explain why as I continue. later date but he has a long road to travel before Failure to create such a statutory body will result that happens. in an absolute prohibition on the UK commission for equality and human rights acting in relation to 15:03 devolved matters. As the Equality Bill has now Margaret Mitchell (Central Scotland) (Con): It received royal assent, there is no prospect of is important to put today’s debate in context and to altering the provision. The Justice 1 Committee say at the outset that the reason why the Scottish has continued to ask one central question while it Parliament is discussing the bill and why the has considered the Scottish Commissioner for decision was made to use precious parliamentary Human Rights Bill: what, if any, added value will time to legislate for the creation of a Scottish there be in creating the post of a commissioner, commission—or commissioner—for human rights with up to two deputes, at the staggering cost of is not because of any pressing need to do so due £1 million a year? Having taken evidence from a to abuses or failure properly to acknowledge or act host of witnesses, the committee is firmly of the on human rights issues in Scotland. Even before opinion that any gap in provision is a narrow one the ECHR was incorporated into Scots law and in relation to awareness raising. before the Scotland Act 1998 and the Human Having identified that gap, the committee Rights Act 1998 were enacted, Scottish courts had deliberated at length on how it could best be an excellent record on human rights issues. resolved. Opinions varied. For my part, I remain Evidence of that is borne out in the lack of firmly of the opinion that the gap would best be challenges to court decisions on human rights. met by extending the role of the Scottish public Even if that had not been the case, the services ombudsman—a pre-existing statutory incorporation of the convention directly into Scots body that already deals with alleged breaches of law has necessitated not just courts’ adoption of a human rights in the delivery of public services. common-sense approach to human rights issues Legislation should be introduced to extend the role but their slavish adherence to the convention’s of that office holder, who would build on existing provisions. experience and take on a promotional role. As has been pointed out on a number of Giving additional powers to a pre-existing body occasions, principally by the Scottish would be more cost-efficient than establishing Conservatives, the rush to incorporate the posts for new office holders and would mean that convention directly into Scots law, without proper more funds could be spent on the promotional role

†443 25149 3 MAY 2006 25150

and—more important—on supporting non- It is easy to see how the human rights of a governmental organisations and the voluntary prisoner or an asylum seeker could be violated, sector, so that they could take up individual cases but people should also understand how human using the expertise and experience that they have rights are important in areas such as health and gained over a number of years. That is something education, for which the Parliament has that the proposed Scottish commission or responsibility. As has been mentioned, we do commissioners for human rights will have no people no favours if we mislead them about what power to do. a human rights issue is. Policy issues are not human rights issues as such. We must give When considering human rights issues, there is people a true understanding of what we are talking frequently no right or wrong answer; in effect, a about. decision is based on a value judgment. In such instances, elected politicians should make the I believe that all members of the Justice 1 decision. They can be held accountable by the Committee were keen for someone or something public; an Executive appointee cannot. to be established to take on that role—members will note that I wrote my speech before I listened to I want to clarify a point that the minister made, Margaret Mitchell’s. During the preparation of our because the same argument applies to the stage 1 report, we strove to consider the bill creation of a commission for human rights to positively. We were acutely aware of the proposal provide guidance on the incorporation of the to establish a commission for equality and human European convention on human rights into Scots rights that was being considered at Westminster. I law. The idea was first mooted in 1998 and, at the was sorry that I was not able to join my colleagues time, enjoyed all-party support. However, we have on their visit to meet the MPs and Lords who were moved on considerably since then. Seven years working on the Equality Bill. When we examined later there is no such need. A plethora of the bill, we wanted to know what added value it commissioners with watching briefs on human would provide, whether there was a gap that rights in their remits has been created; the ECHR needed to be filled and whether the bill would fill it. has been incorporated directly into Scots law; and I will refer to those points again later. a UK commission is now being set up. First, I will address three issues that caused me The creation of a commission with up to five some concern. A number of commissioners and commissioners, or a commissioner with up to two bodies responsible for public service issues have deputes, would be a total waste of £1 million a been established over the past few years. In year. Its main function would almost certainly be to addition, there are long-established roles, such as create more bureaucracy and undertake that of the chief inspector of prisons. My concern unnecessary paper pushing—which is why the was that the establishment of a Scottish Scottish Conservatives reject the principles of the commissioner for human rights should not bill. replicate their work. It is clear that there will be I genuinely regret that opportunities are being overlaps in respect of children and prisoners, for lost to introduce new legislation to extend the role example, which to a certain extent can be dealt of the Scottish public services ombudsman to with by the establishment of protocols. However, it include awareness raising and promotion, and to would be better if the bill could minimise the fund voluntary organisations and NGOs to utilise duplication. That would reduce the possibility of their experience and expertise to take up individuals or groups being uncertain about who individual cases. Even at this late stage, I urge the the appropriate contact is and would cut down Executive to think again. inconsistencies. We should not leave the resolution of such duplication to the good will of the individuals involved. 15:10 Mrs Mary Mulligan (Linlithgow) (Lab): Let me Similarly, I have concerns about the interface of be clear from the outset that despite any doubts I the commissioner with legislators. When the may voice about the format of the bill, I have no Justice 1 Committee spoke to the New Zealand doubts about our responsibilities as politicians and chief human rights commissioner by videolink, it legislators to promote and uphold human rights. found out that, originally, there was a clear view of what the New Zealand Human Rights Commission As someone who has been a Labour Party would do. However, the commission’s role seems member for many years, I have often stood to have grown and I do not think that it would be alongside other party members and fellow trade an exaggeration to say that it appears that there is unionists to ensure that human rights would not be now a tension between the commission and the ignored. However, the term “human rights” must political parties and the Government in New mean something to the whole population. It cannot Zealand. That situation is unhelpful, at best. As be some difficult-to-define notion that appears to politicians, we have a legitimacy that is given to us apply only to certain people. by the people who go to the ballot box to use their

†444 25151 3 MAY 2006 25152 vote. Ultimately, human rights issues will be obligations under HR legislation and that people in decided by legislators and interpreted by the general know their rights. A strong community courts. That is central to our democracy. focus will ensure that human rights really mean something. Alasdair Morgan: The member has spoken about taking evidence from another commissioner, The Deputy Presiding Officer: I call Pauline to which the minister also referred. Is she McNeill to speak for the committee. surprised that she has never heard from any commissioner for any subject who has thought that their job is unnecessary? 15:17 Pauline McNeill (Glasgow Kelvin) (Lab): I Mrs Mulligan: No. begin by thanking the committee clerks and My third concern is about the budget, which is committee members. I also give a special thank an issue that has already been raised. It is fair to you to our adviser, Jim Murdoch, who is a well- say that, after a couple of evidence-taking respected academic in the field of human rights. sessions, the committee wondered whether £1 Of course, I also thank the Joint Committee on million would be enough. However, once we Human Rights and the Department for began to go into the discussions— Constitutional Affairs with which we met as part of our consideration of the bill. We considered the bill Stewart Stevenson rose— with a great deal of care—not that we do not do Mrs Mulligan: Hang on a minute, Stewart. Once that with all bills. However, if members have read we did that, we became a little clearer that, if we the committee report, they will have seen that provided the right roles, £1 million would be more although there was a great deal of consensus, we than enough. parted three ways at the end of the process. Mr McFee: Will the member take an The committee identified a small gap in the work intervention? of the existing bodies and organisations that deal with human rights, which is that none of them has Mrs Mulligan: Well, since it is you, Bruce. a statutory function to promote human rights. That Mr McFee: Should we not model the role of the is the main function of the Scottish commissioner commissioner around the budget? for human rights, as set out in the bill. As other members have said in the debate, the committee Mrs Mulligan: No, absolutely not. I was about to was concerned about the number of move on to say that. commissioners and other bodies that deal with For example, we do not need a chief executive, human rights issues—bodies and organisations which is in the bill, or duplicate administration that the Scottish Parliament has created. It is officers. There are ways to save money, which we absolutely crucial that we do not add to the could reinvest in the work that the commission or confusion and that we avoid all duplication. commissioner would do. We should consider the It is unprecedented in the Parliament that a work of the commission and then the budget, not committee has not endorsed the general principles necessarily the other way round. of a bill. We were not willing to support the bill I am one of the committee members who believe because it requires substantial amendment for the that we should agree to the general principles of various reasons that members have set out and the bill, but that it should be substantially amended that I will move on to address. at stage 2. The fact that three views were The European convention on human rights expressed in the committee’s stage 1 report— came into force in 1953 and was primarily even without our SNP colleagues taking a view— concerned with political and civil rights issues. As shows the diligent way in which we considered the members know, although the ECHR is the main bill. As I said, with the right amendments, the bill source of human rights legislation, we now have will fulfil its remit. As I said at the outset, the other sources, including the United Nations commission or commissioner will both add value Convention against Torture and Other Cruel, to the bodies that exist at present and fill the small Inhuman or Degrading Treatment or Punishment gap that will be left after the creation of the CEHR and the United Nations Convention on the Rights at Westminster. of the Child. A Labour Government adopted the From his most recent letter to the committee, I ECHR into United Kingdom law, but we in note that the minister is beginning to respond to Scotland were the first to adopt and enshrine it in our concerns and to understand where we are Scots law. Devolution placed on the Scottish coming from. It is not good enough for us to agree courts the responsibility of policing the exercise of to a bill that sounds good and ticks boxes but does devolved powers. There have been only three nothing for the people whom we represent. The bill challenges to the Scotland Act 1998 to date, none should ensure that public sector bodies know their of which has been successful.

†445 25153 3 MAY 2006 25154

The Scottish courts have been successful in consider the conclusions of the Justice 1 addressing questions of human rights; they do that Committee. If the general principles of the bill are every single day. We have a good record in agreed to, we will not consider the bill at stage 2 Scotland and we should not be slow in saying so. until September, which is a welcome decision Before we go any further in assessing the need for given the variety of views that are being expressed a commission or a commissioner, it is essential for in the Parliament. Robert Brown outlined us to recognise that we live in a devolved significant changes to the bill in his letter to the Scotland; our existing individuals and committee and I support the move away from organisations must apply the law. having a single commissioner towards setting up a collegiate body. I am not convinced that a The bill as introduced does not set the commission is needed, but a body could bring legislation in the context of Scottish courts individuals together from various backgrounds. enforcing human rights and members of the Trade unionists, academics and other people with Scottish Parliament arguing for good human rights an expertise could contribute. and considering day and daily, for every single bill that is put before us, whether legislation breaches Margaret Mitchell talked about the model of the human rights law. We must be accountable for Scottish public services ombudsman, which has every judgment that we make in that regard. been rejected. I was sympathetic to the idea, although it would require consideration of various It is fundamental that we should not subscribe to matters. What would the structure be? Which staff the idea that only a human rights commissioner or would exercise the human rights function? What commission can protect the people whom we powers would the Scottish public services represent from human rights abuses. It is ombudsman have? important that we acknowledge that human rights institutions are not the sole guardians of human The bill should require that the public’s view rights, although all the committee witnesses gave should inform anyone who works in the human the impression that if we did not set up a human rights field. There should be a duty to work on rights institution, we would fail in our duty to human rights in areas of deprivation and social protect human rights. exclusion. If we are to spend resources on a human rights commission or commissioner, we A body that was constituted to suit the must be sure that the activity of that body or circumstances of a devolved settlement could person is meaningful to Scottish people, as Mary have the critical role of promoting human rights, on Mulligan said. The strategic plan is essential and I condition that it operated alongside the elected welcome that approach, because I will not support members of the Scottish Parliament, all levels of a body that does not tell me how it will make its government and the non-governmental decisions. I want to know that the body—or organisations that contribute to civil liberties. In person, if that is what is decided—will take a long- that context, I agree with Robert Brown that we term, strategic view of what human rights are. I should pay tribute to the Scottish Human Rights reject the notion that we should appoint a person Centre—the former Scottish Council for Civil or body who would think it their job simply to Liberties—which has played such a role in the consider whether the legislation that the past. Parliament passes contravenes human rights. The powers and functions of human rights Further consideration must be given to technical institutions vary from country to country, but we issues. The committee has discussed with the should not imagine that there is a league table of Executive the judicial review function and whether human rights institutions—there is a danger that a GB commissioner would be able to exercise we are measuring ourselves in that way. In some power with the consent of the commissioner for a countries, human rights are breached daily and we devolved area. should not ignore our responsibility to campaign for change. What is right for Scotland is different The bill would place a duty on the proposed from what is right for the UK as a whole, New commission or commissioner to keep the law Zealand or Northern Ireland and I strongly object under review. That is a fundamental issue, to the notion that we should simply import an because it is the Scottish Parliament’s job to keep approach from another country and say that it will the law under review and to ensure that legislation work—it will not work. I cannot accept the bill if it complies with human rights. The provision should does not make that clear and I cannot accept the be removed from the bill or substantially changed. bill if it does not make the duties of a human rights The Justice 1 Committee commissioned work commission or commissioner clear, thereby from MORI that indicates that the public support avoiding the duplication of activity that members the idea of a human rights body. It was interesting have described. that women and people from the poorest I commend the Executive for its response and its backgrounds supported the idea. If we set up such decision to delay the process and to take time to a body, it will be our job to ensure that we shape †446 25155 3 MAY 2006 25156 an institution that will suit the devolved settlement That is translated into the objective in paragraph in Scotland. If we tailor such a body to our needs, 41 of it might fulfil a useful function. “Increasing general awareness so that everyone in Scotland understands their rights” 15:24 and responsibilities. Even if that were necessary— Alasdair Morgan (South of Scotland) (SNP): I although members would not inevitably be led to admit that I was sceptical when I first saw the title that conclusion from reading the Justice 1 of the bill some time ago. That was prompted by a Committee’s report—where does it come in the list more general concern about the vast increase in of vaguely desirable things that the Parliament the number of executive agencies and should do? commissioners and the increasing extent to which Mike Rumbles (West Aberdeenshire and the Executive and perhaps the Parliament seem to Kincardine) (LD): I am a bit confused by the put their responsibilities at one remove. That is not Scottish National Party’s approach. Stewart a party-political point, because most of us have Stevenson said that the SNP does not support the signed up to pieces of legislation that have done bill because, in effect, it is not strong enough, that, many of which have been good. However, we whereas Alasdair Morgan says that his party does should not always proceed unthinkingly down the not support the bill because we do not need it. road of passing out everything that ministries Which is it? should do to agencies and everything that the Parliament should do to commissioners. Alasdair Morgan: There are many reasons why I cannot support the bill, so I am pushed to know As Stewart Stevenson said, the bill made me where to start. Personally, I am not convinced that wonder what on earth members of Parliament and the bill is needed. One of my main reasons is that I members of the Scottish Parliament are doing. am not sure that we need a commissioner to fill Who sticks up for human rights, looks for human the small gap that the Justice 1 Committee said rights abuses and thinks about our direction on had to be addressed. The bill is a sledgehammer human rights more than members of this to crack a very small nut. The policy memorandum Parliament? states that the commissioner will have a Patrick Harvie (Glasgow) (Green): The promotional role and will work to increase the concept of mainstreaming equality is important to awareness of human rights. To be frank, that is us, too. We have a duty as parliamentarians, and not needed. It strikes me that awareness of human the Executive has a duty as the Government of rights in Scotland is on an inexorable upward trend Scotland, to promote equal opportunities. Does and is high in many areas. I cannot envisage a that mean that we should do without the Equal commissioner changing that or reaching parts that Opportunities Commission? MSPs or agencies and other individuals have failed to reach thus far. Alasdair Morgan: Perhaps at some stage, if we are successful. Clearly, the UK Parliament had not The minister listed issues with which a addressed some of those issues successfully. We commissioner could help us. Among other issues, must take every issue on its merit. Some he talked about people trafficking, the rights of commissions are necessary, but we must consider elderly people and mobile phone masts. On that each one carefully and ask whether it is necessary description, the commissioner seems to be the and whether it will do something that we cannot answer to all our prayers. It is a wonder that do. With the proposed human rights anyone has been able to survive this long without commissioner, there is a serious argument that them. Such a body would hardly be designed to that is not the case. address a small gap. Given the Justice 1 Committee’s major criticisms, one has to have I want to consider why the Executive thinks that serious concerns about the bill. we need him or her or them or it—I am not exactly sure what the proposal is for. The Executive’s My final point relates to the £1 million cost of the explanation is in paragraphs 7, 41 and 42 of the commissioner. Let us make no mistake: once a policy memorandum. Paragraph 7 states that commissioner is set up with a budget of £1 million although the attention to human rights in the a year, it will be difficult to disestablish that body, media has so we would be making an on-going commitment to provide at least £1 million every year. Could we “raised the public profile of human rights issues, unfortunately some of the comment has been ill-informed tell our electors that the commissioner was the and has created misleading impressions in the minds of best value for money that we could find for the £1 people as to what ‘human rights’ actually means”. million? I challenge any member to go back to their constituents, whether they are suffering The Executive argues that human rights abuses or not, and say that the best “a human rights commission could have a significant impact in dispelling those impressions”.

†447 25157 3 MAY 2006 25158

thing that can be done to address their problems is commissioners and that their role in relation to the to spend £1 million in that way. Parliament is not properly defined—it is not clear whether they add value. There is the genuine Among the opponents of this institution are the question—which it is perhaps unfair to put to the right-wing columnists and their readers—those minister, but which it is correct to put, from the who glory in listing all the ways in which this public’s point of view—whether we are going Parliament is allegedly wasting its time. They are ahead with a bill that will add to the problem rather of course deliberately and malevolently wrong than sort it out and provide greater consistency about nearly everything that we do, but I would and balance. hate to give them what I think would be a genuine piece of ammunition. Marlyn Glen (North East Scotland) (Lab): For the record, New Zealand has a chief commissioner and up to eight other 15:31 commissioners with various responsibilities. I can Des McNulty (Clydebank and Milngavie) pass further details to Des McNulty if he wishes. (Lab): Just before I rose to speak, I was handed a note saying that the House of Lords has handed Des McNulty: That issue is not a particular down a ruling that means that compensation for problem. If the ombudsmen were to take on the mesothelioma sufferers who were exposed to role of the human rights commission, different asbestos and for their families will be cut, which I individuals would handle different parts of the think is a real human rights issue. The question work. The problem is to do with how many whether the bill will do anything to address such separate statutory arrangements we should put in issues should be at the front of our minds. place and whether the public will get confused. I start not from the position of talking about the One of the problems with the bill is that, in bill but from the more logical position of asking adapting to some of the criticisms that have been what commissioners are for, what kind of made of it, we are adding to the ad hoccery and commissioners we need and how the bill fits in diversity of the arrangements. Rather than create with that. The Finance Committee, which is yet another model that we will have to deal with, I conducting a review of commissioners, had suggest that it would be better to pause, think interesting research evidence presented to it a about what we want to do, and decide to do couple of weeks ago that looked at international something that is fit for purpose and which meets comparisons and the logical positioning of the requirements. commissioners and tried to establish criteria. I know that the minister and his party are set on As far as we could tell, New Zealand, to which the proposal and that it is one of their policy the minister referred, exhibited best practice. It has objectives. I respect that—people should be able decided that there should be only two to go before the electorate and say that they want commissioners—an audit commissioner and an to do a certain thing. However, the Parliament ombudsman/human rights commissioner. That needs to think about how we can give effect to that represents an appropriate balance between the policy. One of the problems is that the public mood independence that is required to achieve has changed and the space for a human rights something that adds value to the Parliament and commissioner has become crowded by other the logical role. creations. We know that there needs to be a rationalisation. Inevitably, there will be one either It has been pointed out that the Justice 1 before or after the election. The problem is that, Committee identified a narrow gap that a human nevertheless, we are proceeding to create a set of rights commissioner could fill. I accept that there institutions and put in place individuals who will is a narrow gap for a commissioner to operate in. necessarily be affected by a rethink process. I From my perspective as a member of the Finance question whether that makes sense. Committee, I ask whether we need to spend £1 million or more on a commissioner—or, indeed, on I could go on to say that this proposal might just five members of a commission, which I understand be a job creation scheme for lawyers— is the minister’s current proposal—to fill that Gordon Jackson (Glasgow Govan) (Lab): narrow gap. What is wrong with that? In New Zealand, it was decided that a balance Des McNulty: Gordon Jackson might think that needed to be struck with the number of that is not a bad thing, but others might think that it commissioners and that their functions could be raises one or two questionable issues. combined. I expect that the Finance Committee will consider that explicitly, not in the narrow If the minister is saying that the proposed human context of the human rights commissioner, but in rights commission could deal with telephone mast relation to commissioners more generally. There is decisions or problems associated with rubbish a public mood that we have too many collection, it might recommend itself to people in

†448 25159 3 MAY 2006 25160

East Dunbartonshire who wish to raise issues with suggesting that the ombudsman would similarly the Liberal Democrat-run council. However, my take individual complaints on human rights? He view is that the way to deal with that situation is to needs to answer that question, because the vote those buggers out, not to set up a human rights function would still have to be commission. structured, even if the public services ombudsman held it. 15:37 Phil Gallie: The terms under which the Phil Gallie (South of Scotland) (Con): As ombudsman works are set by ministers—Alasdair many members who date back to day 1 of the Morgan referred to ministers’ and members’ Parliament know, I had grave doubts about the responsibilities—so we could think about that and incorporation of the ECHR by the Scotland Act set the rules for the ombudsman’s human rights 1998. The fact is that, historically, human rights in function, perhaps with the benefit of the Scotland have always been protected by our ombudsman’s knowledge on the matter. national law. There should have been no need for I point out that this devolved Parliament is, to incorporation. Nevertheless, that was done and we some degree, trying to fulfil the wishes of the UK have to live with it. However, we should minimise Parliament. The narrow gap about which we are the impact on the Scottish people and their talking and the need to liaise with the UK pockets. commission were created by legislation from the To that extent, I welcome the report of the UK Parliament which is, to some extent, intent on Justice 1 Committee, which recognises that the imposing a charge on our budget of £1 million a appointment of a commissioner is unnecessary year. I would have thought that all the keen and unwise. I emphasise what Pauline McNeill devolutionists in the Parliament would feel said, particularly about the narrow gap that would somewhat strongly about that and that it is an be filled. The Executive’s proposals go well imposition that we should not have to suffer. To be beyond simply filling that narrow gap. honest, Robert Brown’s pathetic response to Margaret Mitchell’s comment earlier suggested to Because of Liberal Democrat pressure, the me that he was clutching at a straw when he said partnership agreement requires the appointment that that was not so. of a human rights commissioner and, consequently, the Executive has been forced to When I consider some of the things that follow a line that is most unwise. I would like to happened in Scotland over the weekend—the have seen Labour members of the Executive deaths and violence that we have experienced taking a stronger line and identifying with some of with our young people—and the way that human the views that have been expressed by Labour rights extend to young people in particular, I am members of the Parliament in the debate. led to think that human rights might have been taken a little bit too far in protecting them. We That said, I welcome the Executive’s response should inject responsibility into our younger people to the Justice 1 Committee’s report. However, the as well as inject it into their heads that they have step-back reaction that that response represents is rights that stand above others’ rights. nothing but a patch-up that is designed to ensure that the Liberal Democrats’ interest in the I identify entirely—although I am horrified to say partnership agreement is not lost. I suggest again so—with Alasdair Morgan’s speech, which was that it is time for the Executive to put the interests excellent, apart from its final phrases. I go along of the people of Scotland before those of the with everything that he said about the plethora of Liberal party and the partnership agreement. commissioners that the Parliament has created. We should learn the lesson of the mistakes that Given the UK Human Rights Act 1998, my we have made, move back and not repeat our strong belief is that the Scottish public services mistakes by agreeing to the bill. I wish that he had ombudsman should be recognised as the joined the Tories in the past when we voiced such individual with whom the UK commission for opinions when it mattered, but at least he has equality and human rights should liaise and seen the light now, and I welcome that. work—a suggestion that Margaret Mitchell made and which Pauline McNeill viewed sympathetically. That would be a simple matter of adjusting the 15:44 ombudsman’s responsibilities and it should fulfil Gordon Jackson (Glasgow Govan) (Lab): It is the requirements of the Human Rights Act 1998. rather strange how attitudes towards human rights have developed of late. Everyone believes in Pauline McNeill: I and others have been human rights as a good thing, but at the same sympathetic to adjusting the public services time they are referred to in disparaging terms, ombudsman’s responsibilities, but the nature of almost as if they were too much of a good thing. It the ombudsman’s work at the moment is that she reminds me of the way that people used to use the takes individual complaints. Is Phil Gallie

†449 25161 3 MAY 2006 25162

term do-gooder, as if doing good had somehow baby that I would hate to throw out with the become a bad thing. proverbial bath water. I recently went to a conference of From the standpoint of being a huge supporter parliamentarians from many different places. of human rights legislation, I support the Human rights were on the agenda all the time and, establishment of the commission and the more often than not, they were referred to in a commissioner. They are the obvious and logical slightly cynical and disparaging way. Criticism of outcome of formally adopting human rights the concept of human rights was hinted at—at legislation. If I am honest, those who do not wish least Phil Gallie is direct. to have a commissioner take that position because, deep down, they are not happy about I found myself wondering why we have a the whole idea of human rights legislation—those jaundiced view of human rights. It may be feared views go together. Others will disagree: some say that the pendulum is swinging too far—that is what that they have other reasons for not wanting a Phil Gallie is on about—and that human rights commissioner. have been preserved when common sense has sometimes gone out the window, which can Margaret Mitchell: How does the member see happen. At times, people have a sense that our the proposed promotional role working with the system is being interfered with. My impression is five commissioners? that some judges think that the ECHR is Gordon Jackson: I certainly see a promotional unnecessary. They would say that we are Scottish role. I am not avoiding the question; I will come to after all, that we have our own instincts and that it. we look after people well enough. Of course, there is a bit of truth in the claim that we in Scotland I see Jackie Baillie shaking her head, but many have a sense of fair play. of those who do not want a commissioner—I exclude her from this suggestion—dislike deep People feel that the bill will introduce yet another down the idea of human rights legislation. I am commissioner—that was Des McNulty’s point. It is back to Phil Gallie as my embodiment of that felt that we are overregulated and that the bill principle. might introduce yet more regulations and advice. I understand that. I think that we are overregulated. Notwithstanding what has gone through However, none of that should take away from the Westminster, it would be plain daft not to have a correctness of formally giving human rights a commissioner in Scotland. What sense would it clearly recognised place in our system. make formally to promote human rights in relation to reserved matters in the UK but not devolved The truth is that, although most people think that matters in Scotland? I put my hands up to the fact all individuals have rights, under the surface many that this is just a stage 1 debate. I have listened to of us are often selective about the rights that we lots of my Labour Party colleagues and I accept think people should be afforded. We are all guilty that the bill does not represent the finished article of letting our own prejudices play a larger part in and that a lot of work might need to be done. The that than we care to admit. For example, if people Justice 1 Committee has suggested that and I do in a pub are asked what rights a prison inmate not pretend to know anything like enough detail to should have, most of them will eventually answer, argue with it. “Not much.” They will certainly not suggest that they should have as many rights as I believe they Having said that, I like some of the specifics. I should have in a civilised society. like the fact that the commissioner will be accountable to Parliament and that their role will Discrimination on the basis of gender, race, be promotional rather than investigative— colour or disability, for example, still occurs often. Margaret Mitchell talked about that. It is to do with In effect, that represents a failure properly to changing the culture. What could be better than accord every individual the rights that they are section 2, which says that the duty is entitled to expect. “to promote awareness and understanding of, and respect Everyone believes in human rights as a good for, human rights”? thing, but definitions of what is appropriate and to whom can vary so widely that the term becomes That might be too woolly for some. almost meaningless. That is why I have always I have only half a minute to say how human been, and still am, in favour of the ECHR and its rights would be promoted. It would not happen by application in the Scotland Act 1998 and thereafter enforcement—our courts would still be the arbiters in human rights legislation. I have no sympathy of when human rights are breached. However, whatever with those who want to repeal human having a commission and a commissioner who rights provisions because they create problems bring an increased understanding of what human and make it difficult to strike a proper balance at rights are about, as section 2 says, must be good. times. Of course that might be true, but this is one

†450 25163 3 MAY 2006 25164

We are talking about a culture change. The bill commission for equality and human rights will be. is about changing culture. Those of us who believe Page 32 of our stage 1 report states: not only in human rights in a vague sense but in “The CEHR may raise a legal action in its own name in our recent legislative approach to human rights connection with an alleged breach of human rights in should welcome in principle, with all the caveats relation to a reserved matter in the Scottish courts” about things that the experts know we need to change, the bill at stage 1. and that “The CEHR may raise a legal action in its own name in connection with an alleged breach of human rights in 15:50 relation to a devolved matter in the Scottish courts if the Mike Pringle (Edinburgh South) (LD): I could Scottish Commissioner consents to such an action.” not agree more with Gordon Jackson’s closing There is a major inconsistency between the comments. powers that are available under the Westminster The Justice 1 Committee is grateful for all the legislation and those that are proposed for the evidence on the bill that it received. As several Scottish commission. members have said, much of it gave us serious Robert Brown: Does Mike Pringle accept that food for thought. The majority of the written there will be several differences between the two submissions were strongly in favour of commissions? For example, our commission will establishing a Scottish commissioner for human have a right of entry into premises, which the rights. However, as we have heard, the committee Great Britain commission does not have. That is a could not agree on whether to support the stronger power. principles of the bill. Indeed, it is the first time in my brief experience as a parliamentarian that we Mike Pringle: I accept that, but the Scottish have ended up with three options in a stage 1 commission should have similar powers to those report. I firmly agree with option 3 which, as the of the British commission in some respects. report states, My second concern is about the ability of the “is favoured by Members who are, in principle, sympathetic Scottish commission to conduct inquiries and to the establishment of a Commissioner but who have a investigate individual complaints. I agree with the number of concerns about … detail relating to how the Disability Rights Commission, which said: Commissioner would operate.” “The Commission will be restricted to consideration of an Des McNulty: I do not want to be cruel, but how individual organisation only if another organisation carries does Mike Pringle feel that the human rights of the out the same functions.” four Scottish Criminal Record Office members That means that the Scottish commission will not were served by his intervention earlier today? be able to examine a local authority or health Mike Pringle: That is completely irrelevant. board. The Disability Rights Commission has concerns about that. It is also concerned that the The Liberal Democrats have always been Scottish commission should be able to conduct strongly in favour of the establishment of a human inquiries into any matter that it regards as a rights commissioner. I am sure that my colleague serious breach of human rights. Jim Wallace will say more about that in his winding-up speech. That leads me to my third concern, which relates to funding. I have outlined my concerns about the I have three concerns about the bill, all of which inability to conduct inquiries, to which the lack of relate to what it lacks. Before I outline those budget seems to be directly related. Inquiries are, concerns, I thank the minister, who has been of course, likely to be expensive. The responsive to the Justice 1 Committee’s concerns. commission’s estimated budget is £1 million, with There has been a positive response to and additional estimated non-recurrent set-up costs of acceptance of many of the criticisms that the £208,000. The apparent lack of any input from the committee made in its stage 1 report. Scottish Parliamentary Corporate Body before the I return to my three concerns. I agree with many financial memorandum was drafted was of organisations that stated in their written evidence considerable concern to the Justice 1 that the commissioner—there will, of course, now Committee—perhaps the convener of the Finance be a commission, but that does not change the Committee could have commented on that. The opinion—should have greater powers than those Finance Committee has said that the SPCB will be that are proposed in the bill. responsible for any shortfall, but the SPCB should have been consulted before the final budget was My first concern is that the Scottish commission fixed upon. will be unable to raise legal actions in Scottish courts on devolved matters, but that following the We were given some costings as to how the £1 passing of the Westminster Equality Bill the million would be spent, which were based on a single commissioner and two deputies rather than

†451 25165 3 MAY 2006 25166

what is now proposed. The fact remains that the which we can find the answers if we only put our £75,000 that has been allocated for the top job is minds to it. The question is whether we have the not sufficient to attract someone who has a will to do that—and some people do not. As substantial background in the law. That view was Gordon Jackson reminded us, there are those who supported by many people who replied to the would prefer the concept of human rights to be consultation. undermined or taken out of our legislation altogether. We should not allow concerns over the One small matter that concerned the precise format of a bill to be used as a pretext for committee—when I first read the bill I regarded it that objective. I take on trust the assurances of as a complete anomaly—relates to section 8, members who have spoken about their which deals with powers to enter, inspect and commitment to human rights as an idea. Today’s conduct interviews in places of detention. Under vote will be an opportunity for them to put that into the bill, the commission will have to give 14 days’ practice. notice before it can enter such an establishment. It is generally accepted that that is not the way Pauline McNeill: I do not disagree with much of forward, and I am glad that the minister will give what Patrick Harvie says; however, for me, the the matter further consideration. detail is important, and I do not want to set that aside. In giving the evidence that we heard, none The bill is a child that is about to be born. I hope of the witnesses ever talked about the role of that, in the years to come, it will grow into an adult Parliament, local authorities or trade unions. I with considerably increased powers. I strongly cannot sign up to the creation of an institution support the bill. unless we all agree. Enforcing human rights is not just the duty of the HR institution; it is about 15:56 working alongside the elected bodies. I have not Patrick Harvie (Glasgow) (Green): I have been heard about that so far, and that worries me. slightly disappointed by some of the comments Patrick Harvie: As Pauline McNeill has pointed that have been made in the debate. My mood out, an HR institution is not the sole defender of changed for the better, however, when Gordon people’s human rights. I agree with that. Jackson got to his feet—it would be very welcome Nevertheless, it is an important part of the if he did so more often. Like Gordon Jackson, mechanism. Robert Brown gave a clear expression of the value of human rights legislation in our society. Human Many members have mentioned the legislative rights are part of the moral basis of a modern process and our responsibility, as MSPs, to society, and we should not lose sight of their pursue that on our own. I am not convinced that importance. Robert Brown also spoke of the need that is enough. That is an important responsibility for a truly independent body. I will go on to focus that we have to bear, but it is not enough to see on the principle of the independence of the body the Executive’s human rights statement on a bill. I that we need to establish. do not want to see the Executive’s view every time; I want to hear about the shades of grey. I Robert Brown mentioned the cross-party group want to hear the other side of the story. It is not with which he was involved in the first session of enough to know that the Presiding Officer, who I Parliament and with which I have been involved in am sure takes the responsibility very seriously, the current session. The organisations that have assures us that the bill, as introduced, is compliant been working long and hard for a commission to with human rights legislation. I want to hear the be created are impatient to see that done. They arguments from both sides, and I also want there are insistent on the independence of the body and to be an independent voice who will advise me remind us that the issue cuts across all about a bill as it is going through Parliament. Government departments—it is not just about justice, but about education and health, and it I remember that the provisions of the Family concerns many other Executive departments. I Law (Scotland) Bill, which went through welcome the fact that the minister is prepared to Parliament not so long ago, had been widely consider what improvements can be made. I think trailed and consulted on, especially those on the that significant improvements should be made to reduction in the waiting time for the dissolution of a the body that is proposed at the moment, and I civil partnership or for divorce. At almost the last look forward to that happening. minute, amendments were agreed to that would have meant that the bill was not compliant with I know that there are concerns about human rights principles. The Executive eventually accountability and the precise structure and format had to lodge amendments to seek to increase the of the body that we are creating, but this is not waiting time for the dissolution of a civil rocket science. We are not dealing with new, partnership just in case the amendments that insoluble problems that no legislature has ever sought to increase the waiting time for divorce encountered; we are dealing with questions to were agreed to. The process was cobbled

†452 25167 3 MAY 2006 25168 together. That shows that it is important that we challenging disability discrimination, closing the have an independent voice to help us with our pay gap or tackling racism, we have been at the scrutiny of legislation. forefront of the thinking. It is now acknowledged that the UK has the most comprehensive anti- Gordon Jackson also talked about the cynical discrimination legislation in Europe; our and disparaging language that is used when some commitment to an equal and inclusive society is talk about human rights. When we use the term also enshrined in the Human Rights Act 1998. “political correctness”, we are almost not allowed to use it without the suffix “gone mad”, and there is I welcome the further proposals that are a danger that references to “human rights” will go contained in the Equality Act 2006, such as the the same way. establishment of the UK commission and the appointment of a specific commissioner for I have spoken about some of the improvements Scotland along with a specific committee that will that I would like to be made to the bill. We have cover Scottish interests. I recognise that the more time to discuss what those should be. I Scottish commissioner and the Scotland would like there to be a body that can protect as committee will cover equality issues on a reserved well as promote human rights. I would like some of and devolved basis. However, I am also clear that the CEHR’s powers to be brought into our we will have to think carefully about the role and commission. function of the Scottish human rights commission I am very much opposed to the idea that we in relation to the UK commission and the other should roll together the commissioners and the public bodies identified by the committee, such as ombudsman. The human rights agenda and the the public services ombudsman, the commissioner public services maladministration agenda are for children and young people and Her Majesty’s separate and should remain so. It is not chief inspector of prisons for Scotland, to name appropriate to lump them all together along with but a few. children’s rights and freedom of information, as Like Mary Mulligan, I am concerned about some members have suggested. They are overlap. For me, the key questions concern the separate and important agendas. added value that we will get from the new We should take Alasdair Morgan’s advice that commission, whether its function could be carried commissioners do not often advise that their own out by another agency and what works for the jobs should be abolished, but some Governments people whom I represent who will benefit from the would not advise the creation of a truly body. I believe that the Justice 1 Committee is to independent body to hold them to account. We be congratulated on its stage 1 report, which was should take this opportunity to create the strongest interesting because it pursued exactly those body to operate along those lines that we can. questions. Widening the debate just a little, I want to 16:02 mention that, as part of its consideration of the Jackie Baillie (Dumbarton) (Lab): Like many Police, Public Order and Criminal Justice members in the chamber today, I speak in support (Scotland) Bill, the Justice 2 Committee has of the general principles of the bill. I do not think recently considered how an independent police that any of us could have put it any better than Mr complaints commissioner should be established. I Singh did during time for reflection when he spoke believe that we need an independent police about rights being an essential prerequisite of complaints system just as I believe in promoting democracy. I will shock Patrick Harvie by agreeing human rights, but I also believe that the with him that human rights should be central to architecture of how we deliver such things should what we consider to be a modern Scotland. exercise our interest. Pauline McNeill was right to say that the detail is important. However, I will now depart from my agreement with Patrick Harvie. I genuinely believe that there We have a plethora of commissioners with are concerns about the detail, and I am delighted different functions, different governance with the minister’s commitment to reflect further on arrangements and different levels of financial that at stage 2. I say to Gordon Jackson that being accountability. All our commissioners do valuable concerned about the detail does not mean that I jobs—I do not take that from them—but there is a am against embedding a human rights system in genuine concern that we are in danger of creating Scotland. institutional clutter. The challenge is to capture the laudable policy intention in a way that avoids I turn to the Labour Party’s and this Parliament’s overlap and is clear to the people who need help record on human rights. We have a very good most. record of building a society based on equality and respect, the cornerstone of which is the delivery of I remind members that, when we created the social justice. Whether it has been about Scottish public services ombudsman in 2002, we did so because we wanted a complaints system

†453 25169 3 MAY 2006 25170

that was open, accountable and easily reiterate that we can perfectly legitimately consider understood. More important, we wanted a system whether a commission is the right vehicle for that that would have the trust of the Scottish public. without being against the desire to embed human The Scottish public services ombudsman was rights in Scotland. I have not often been designed to be a one-stop shop that would replace associated with Phil Gallie and I have no intention four separate ombudsmen. That was—I say this of being so now. My concern is to ensure that the with the benefit of hindsight—absolutely the right body that promotes human rights works well. I thing to do at the time. want us to have a human rights regime that is powerful. It strikes me that we need to consider whether we require more commissioners to cover different I will support the general principles of the bill, but issues or whether we could take an imaginative I hope that we can improve it at stage 2. approach by using the public services ombudsman as a model and providing for a body that both proactively considers rights and responds to 16:09 complaints. In that regard, Alice Brown’s Mr Bruce McFee (West of Scotland) (SNP): submission to the committee was instructive, as it Although there were many divergent opinions confirms that the ombudsman’s role is not simply among committee members about the need for a to take up complaints but to make connections. Scottish human rights commissioner and what She stated: added value a commissioner would bring, there was an even wider divergence of opinion about “Human rights are fundamental to the concept of good what functions such a commissioner would have public administration. Although the legislation governing the SPSO’s remit makes no direct reference to human rights, and whether the commissioner’s role as outlined in some of the complaints we deal with are in fact issues of the bill—because that is what we were dealing breaches of human rights”— with—was practical, avoided duplication and could actually be achieved as envisaged in the bill. I Robert Brown: Will the member give way? have to say that, from the outset, the Executive Jackie Baillie: I will do so once I have finished failed miserably to establish clearly what added the quotation. value a commissioner would have outwith the vague promotional role that was being suggested. The submission continues: “maladministration may involve more general A strong current of opinion ran through the inconsistencies with human rights concepts, for example debate in committee to the effect that we were when a public authority fails to give adequate information basically being obliged to create a post that would regarding rights of objection or appeal.” deal with devolved issues in the context of the Robert Brown: Jackie Baillie is absolutely right creation of the commission for equality and human to make some of those comments, but does she rights, which was being established by a bill at accept that there is an important distinction, which Westminster. It was felt that we were being has been blurred somewhat in the debate, required to create the post so that it could be the between the ombudsman’s powers in relation to trigger mechanism that the Scottish Parliament maladministration and the broader human rights was required to establish. agenda? I accept that an element of overlap However, there was general agreement about exists, but maladministration is nevertheless a one role that a commissioner would fulfil—the relatively narrow concept that relates to the commissioner would be a figurehead around tackling of complaints, whereas human rights is a which human rights issues could revolve. much wider concept or method of analysis that Essentially, it was a role for a human rights expert, involves a whole series of different issues. and evidence on that was given by several Jackie Baillie: I accept that, but I think that we witnesses. However, the figurehead role also have an opportunity to consider how we can get brought with it its own problems, not least the more from the existing regime by taking what is possibility that creating such a figurehead or partly a reactive service and making it more central body would, in practice, narrow the proactive. That would be a desirable objective for perception of the general responsibility of the Executive. Parliament, its members and non-governmental organisations to uphold human rights. It would In conclusion, if it was right to consider a one- now be somebody else’s job to do that, and the stop-shop approach in 2002, we should consider individual so identified would have sole whether such an approach would not also be right responsibility for fulfilling that role. That, at least, is today. I agree that the gap that the committee how the proposal could be perceived. identified exists and I believe that we need a body that promotes human rights to others. Gordon A number of organisations are involved in the Jackson is right that consideration of human rights development of human rights, in raising should be embedded within our system, but I awareness of human rights and in increasing

†454 25171 3 MAY 2006 25172 respect for human rights, and that diversity should people in this Parliament—that is a big let down. be encouraged whether or not the bill goes ahead. The Executive has left us unclear about the nature of the commission and its role, about whether the Robert Brown: Does Mr McFee accept that, commissioner model is appropriate, about how from the beginning, there has never been any added value can be achieved, about how co- suggestion from the Executive or any of its location can be achieved, and about how spokespeople that the bill represents the sole way duplication can be avoided. The Executive is also in which human rights could be advanced? It non-committal on a review of commissions, would be part of the architecture, as people have commissioners and ombudsmen. said, but it would not be the only way. That is a fundamental issue. I suggest that the bill has a long way to go and that the minister has a long way to go to make it Mr McFee: I think that that is a fundamental acceptable to the Parliament. The best description issue, but I have to say, with all due respect to the of the committee’s decision—unique, I believe, in minister, that it was the Executive that put the the history of this Parliament—is that good old emphasis on the creation of the commissioner to Scottish verdict of not proven. fulfil that role, whereas many members of the committee were saying that other bodies could fulfil it. I concede the point, but it is perhaps a pity 16:15 that the minister did not elaborate on the Marlyn Glen (North East Scotland) (Lab): I will Executive’s position at the time. The Executive concentrate on the bill instead of feeling the need now concedes that a commission, not a to be defensive about the fact that we are lucky commissioner, is desired. enough in Scotland to have much more than a It became evident during evidence taking that basic level of human rights. However, I appreciate there is a plethora of organisations, Gordon Jackson’s and others’ robust defence of commissioners and ombudsmen whose remit the principles of the bill. incorporates basic human rights. That was one of I remind members of the origins of the bill and of the reasons why one of the committee’s the separate approach to dealing with devolved recommendations was that there should be human rights issues. “a review of all existing Commissions, Commissioners and The Equality Act 2006 will lead to the Ombudsmen including consideration of their respective remits, the degree of overlap in their functions and establishment of a single commission to deal with prospects for co-location and improved co-operation.” equalities and human rights. It will bring together the currently separate Commission for Racial The minister has now told us in his latest response Equality, Disability Rights Commission and Equal that the possibility of co-location with the CEHR Opportunities Commission. The single commission ought to be considered, but that Parliament itself will deal with human rights in relation to reserved would have to carry out any review of issues only, unless it is given express permission commissioners and ombudsmen. No doubt, that by a Scottish human rights body to deal with will happen—after the passage of the bill and after devolved issues. The 2006 act was deliberately we have created another commission. drawn up in that way from the outset to allow the In his letter to the committee, the minister establishment of a Scottish institution, which many accepted the committee’s concerns about the people in many organisations wanted and still general duty to monitor law, policy and practice, as want. one or two other members have said. Perhaps he I welcome the useful briefing from the three was persuaded by the evidence of the Law existing equality commissions on the history of the Society of Scotland, which commented on the legislation and the reasons for the establishment inachievability of that aim by saying that of the single commission. As has been said, the “even the law reform committee of the Law Society of UK equality body will have a Scottish Scotland has 10 people working in it—six qualified people commissioner and a Scotland committee, which and four support staff. We cannot look at everything. Even will meet in Glasgow. I mention the fact that the with the assistance of the office in Brussels, it is an Scotland committee will be based in Glasgow impossible task to cover every aspect of change that is being made to the fabric of our law on a daily basis”.— because, in committee, we discussed the [Official Report, Justice 1 Committee, 11 January 2006; c possibility of co-location and resource sharing. 2606.] The idea of having a one-stop shop for human rights was also mooted, as that would enable a What we are left with is a promotional role for member of the public—the legislation is about the commission, and the question is how that can members of the public—to seek help at one place best be delivered. However, I do not believe that instead of being sent from one office to another. the Executive has put the answer before However, as has been said, as several Parliament today. For those of us who believe that commissions have been established in different human rights are important—the vast majority of

†455 25173 3 MAY 2006 25174

locations across Scotland, such a step would be Network and the Scottish Inter Faith Council, very difficult. I press the minister to give a among others, and established the need for a commitment to review the situation with regard to commission in the first place. Such evidence was commissioners, ombudsmen and so on within a lacking from the Justice 1 Committee’s scrutiny. period of three to five years. Such a review should I welcome the proposed review of the structure clarify not only their location and their finances but of what will be a commission, particularly as that their remits. may give the body the required capacity to allow The bill rightly requires the commissioner the approach suggested by the convener of the “to ensure, so far as practicable” forum on discrimination, Jalal Chaudry, that, because there will be a general duty to promote that activity is not duplicated unnecessarily. awareness and understanding of and respect for Although that could prove difficult with so many human rights, one of the commission’s members organisations working in the field, it is my belief should be given a proactive media role. Press that it would be much worse if gaps remained in regulation is a reserved matter, but we have our the protection of vulnerable people. The briefing own lively media in Scotland, which should be from the equality commissions gives examples, monitored and encouraged to respect human including the education of disabled children, rights. This may be a crowded field, but there is decisions about medical interventions, difficulties agreement that there is a lot of work to do and a faced by Gypsy Travellers and so on—members long way to go yet. can read the list. An example of the thorough job that the Justice 16:21 1 Committee has done—as usual, if I may say Frances Curran (West of Scotland) (SSP): I so—in its stage 1 scrutiny of the bill is that as well welcome the debate on the establishment of a as holding discussions in London, which Mary Scottish commissioner—or commission—for Mulligan mentioned, we had a videoconference on human rights. There is no doubt that Scotland 11 January with Rosslyn Noonan, the chief human needs a human rights champion. The children of rights commissioner in New Zealand. As I said in asylum seekers who are dragged from their beds my intervention on Des McNulty, because the New daily need a champion. The innocent people who Zealand commission has a range of functions, touch down at Prestwick, having been abducted there are eight commissioners, of which Rosslyn by the Central Intelligence Agency, need abuses Noonan is the chief. of human rights to be exposed. Parents of special There is a New Zealand action plan for human needs children need a champion to enforce the rights. The remit and responsibilities of the New right of their children to equality in education. The Zealand commission are different because the rights enshrined in the European convention on Government of New Zealand is not a devolved human rights are of profound importance to the Government. However, one example of the New lives of everyone in Scotland, but are we Zealand commission’s inquiry work is its inquiry discussing setting up a commission for human into accessible public land transport for people rights to commentate on human rights in Scotland, with disabilities. That inquiry covered some of the or are we setting it up to enforce and uphold those same ground as the Equal Opportunities rights? That question goes to the heart of the Committee’s current inquiry into disability, and I discussion. agree with Jim Wallace that a Scottish commission At Westminster, the new commission for equality for human rights would improve and enhance the and human rights will have the power to initiate committee’s work; it would not be a substitute for, judicial review proceedings and will be able to or a challenge to, that work. assist individuals in bringing their cases to court. When the Equal Opportunities Committee The way things are at the moment, a new Scottish scrutinised the Equality Bill, it wrote to the Justice human rights commission will not have those 1 Committee about its concerns over the proposed powers in relation to devolved issues; therefore, powers of the Scottish commissioner. The Equal Scots will have second-class access to justice and Opportunities Committee was worried that those human rights protection compared with people powers would not be sufficiently strong, rather who live in the rest of the UK. than the other way round. At the moment, a Scottish commission will be I return to the point that one of the difficulties able to investigate public bodies, but its with scrutiny of this area of legislation is that one conclusions will not be binding. The Executive single committee was not allowed to run with it the argues that reports from a Scottish commission for whole way, from beginning to end. The Equal human rights will get plenty of media coverage Opportunities Committee took a great deal of and that a commission will have strong moral evidence from the three equality commissions, the authority. So what? Big wow! Amnesty Scottish Human Rights Centre, the Equality International and the Scottish human rights forum

†456 25175 3 MAY 2006 25176 do that type of work and, as Gordon Jackson Speaking as the Scottish National Party’s argued, there are many other organisations that spokesperson, Roseanna Cunningham said: produce reports, get publicity and attempt to “The SNP wants a commission which would fulfil a wide change views and attitudes. range of functions. It should promote good practice, and There is a mismatch between the legislation at public authorities and private bodies would be covered by Westminster and the discussion here about setting human rights legislation.” up a commission. The legislation in England is a In summing up for the Conservatives, Lord James step forward; the bill in Scotland is a step back. I Douglas-Hamilton said: am sure that Scottish National Party members will “Public authorities in Scotland need a body to which they be chuffed to hear me say that the Human Rights can refer for expert guidance on action to iron out any Act 1998 needs to be amended. In relation to difficulties that the incorporation of the European devolved issues, we need to give to a Scottish convention on human rights may impose.”—[Official commission the same powers that are being given Report, 2 March 2000; Vol 5, c 308, 318, 350.] to the CEHR commissioner. That is the only way Later in his speech he appealed to the Minister for in which we will have equal access. The CEHR Justice and the Lord Advocate to give “serious and has such powers in reserved areas, but it is genuine consideration” to what he described as a prohibited from having them in devolved areas. “modest, commonsense proposal”. We did. We Who will have powers in devolved areas, or will we acted and this bill was at long last introduced. not have any rights in devolved areas? Margaret Mitchell: Will the member take an The Executive is always getting Sewel motions intervention? through to help its pals in Westminster. Surely it is time for a little reciprocal love. The truth is that the Mr Wallace: I will be happy to correct anything Executive does not want a human rights among the many things that have already been commission with teeth; it wants a toothless said wrongly by Margaret Mitchell. commission. The Executive does not want a commission that has independence and the legal Margaret Mitchell: The difference is that those authority to challenge our record and the record of comments were made seven years ago. Since other public bodies in Scotland on human rights. then, the convention has been directly What is it afraid of? If such enforcement powers incorporated into Scots law and many different are good enough for England, why are they not commissioners have been created. Human rights good enough for Scotland? The situation does not are part of the remit of all those commissioners. fill me with confidence in the Executive’s The bill is simply not necessary now. intentions. I hope that the bill is amended, Mr Wallace: Margaret Mitchell has been wrong because Scotland needs a human rights champion on a number of factual issues. She displayed her and we need to enforce human rights in law. ignorance of the background to the issue in her speech. The debate was not seven years ago; it 16:25 was only six years ago—and it took place after the incorporation of the European convention on Mr Jim Wallace (Orkney) (LD): It will come as human rights into Scots domestic law. It was no surprise to members that I support the general already in place. I understood that to be one principles of Scottish Commissioner for Human reason why the Conservatives were calling for a Rights Bill, as I was the person who published the commission. two consultation papers that paved the way towards it. When I foresaw the need for a human In her speech, Margaret Mitchell seemed to rights commission, I wanted to help to build a suggest that the bill we are discussing today is genuine human rights culture in this country. simply a reaction to what has happened south of Through education and guidance and the the border. In fact, for much of the time, we have promotion of awareness, a balance was needed been ahead of what has been happening south of for what in the early days, after the incorporation the border. I remember parliamentarians from the of the European convention on human rights into Lords and Commons coming to Scotland to find Scots law, was a close focus on litigation. out what we were doing. The fact that they have Parts of this debate have been disappointing. since leap-frogged over us should be an incentive When I embarked on the process, the idea had to us to close the gap. Others have said that the cross-party support. Indeed, the first debate on a gap is small, but Michael Matheson described it in human rights commission was brought to the floor the 2000 debate as “a massive vacuum”. It would of the Parliament by the Conservative party in be unthinkable for human rights facilities and March 2000. David McLetchie, in moving the awareness in matters that have been devolved to motion, said that he us to be available south of the border but for similar provision not to be available north of the “would welcome the establishment of a human rights border. commission or similar body to act as a point of reference or guidance on a consultancy basis.”

†457 25177 3 MAY 2006 25178

Human rights are not mystical. Alasdair Morgan in many cases, Scottish public authorities did not spoke about how the right-wing press like to beat understand their responsibilities and duties under us with the issue, but human rights include the the Human Rights Act 1998 and believed that right to life, freedom from torture, freedom from more information and guidance should be slavery or forced labour, the right to liberty, the provided. There was a perception that human right to security, the right to have no punishment rights was simply about advancing the principle of without law, freedom of thought, freedom of fair treatment rather than about having specialist conscience, freedom of religious expression, the knowledge of the 1998 act. At the time, that piece right to free elections—all things that we take for of research was highly influential in persuading granted but which we will secure only if we are ministers that there was a need for a commission eternally vigilant. Margaret Mitchell seemed to that could provide training courses for public suggest that everything in the garden is rosy and authorities, undertake awareness-raising that we really do not need to do anything. campaigns on particular issues and disseminate best practice. I do not believe that the Parliament Human rights are applied without distinction, and can discharge those functions. without regard to a person’s beliefs, religion, culture or politics. That is why we should take the Although the Executive and the Parliament have culture of human rights very seriously. human rights responsibilities that they must discharge, there is a need for an independent Margaret Mitchell: Will the member take an body that will hold us to account and keep us to intervention? the mark. I am not advocating that we should Mr Wallace: I have already given way. abdicate our responsibilities to the proposed commissioner. The commissioner will be able to Margaret Mitchell: But my name was make proposals and to examine issues, and it will mentioned specifically. be up to the Parliament and the Executive to The Deputy Presiding Officer: Order. respond. Mr Wallace: I do not want to hear any more ill- The principles of the bill are sound, although a informed comment. We have had enough of that number of suggestions have been made about and I do not want to waste more time correcting improvements that could be made. I do not wish to other mistakes. go over them in detail, but there is one that I will highlight. The minister will correct me if I am The law takes us only so far. For example, the wrong, but the word “responsibilities” appears European convention on human rights was nowhere in the bill. I believe that responsibilities incorporated into the Scotland Act 1998, but other go hand in hand with rights. We must foster a human rights instruments exist and the Scottish culture that not only takes account of human Commissioner for Human Rights Bill says that a rights, but emphasises the importance of civic commission would have to have regard to them. In responsibilities and rights. To that end, it might be addition, the United Nations Paris principles useful to amend the bill so that it incorporates a encourage independent national institutions to reference to responsibilities. Implementing the have regard to the promotion of human rights. Human Rights Act 1998 can be awkward—I know On promotion, education and awareness raising, that because I was on the receiving end of its we want to promote a general awareness of rights provisions very early on—but I would much rather and responsibilities. Stewart Stevenson said that live in a country in which the Government is the public do not know what their human rights subject to the implementation of the law on human are. If they do not know, is that not a cast-iron rights by the judiciary than live in one in which the reason for having a commission to do a better job Government can ride roughshod over the human than has been done up until now? rights of individuals. The briefing from the Scottish human rights forum gives useful examples of what the 16:32 commission might be able to do. The commission Bill Aitken (Glasgow) (Con): The proposed will not be a £1 million advertising campaign, as Scottish commissioner for human rights is not the has been suggested. It can give written guidance most burning issue that the Parliament has on human rights issues; maintain a website; discussed or is likely to discuss, but the debate participate in and speak at meetings; and develop has been interesting nonetheless. Unless I am a commission library, which would be a resource very much mistaken, there will be a democratic for lawyers, academics, researchers and the deficit in this afternoon’s proceedings because the public. bill is likely to be agreed to at stage 1, even though Let us consider the provision of guidance and the vast majority of those who have spoken in the support. In 2001, the Scottish Executive’s central debate do not believe that it will work. Some, such research unit conducted research that found that, as Alasdair Morgan, have excoriated the bill, while

†458 25179 3 MAY 2006 25180 others, including a succession of Labour what to do with and more tsars that the Romanov members, have been apologetic in their dynasty. The fact of the matter is that a halt has to advancement of the case for a commissioner. be called at some point. The commission will not Only the Liberals—who, to be fair, have always do us any good. stressed the importance of human rights—have The case that Robert Brown put forward is been at all enthusiastic in their support for the bill. arguably correct: there is a slight shortfall between The position was summed up by Gordon the Westminster legislation and the provision that Jackson’s speech. He is a man who has he would like to see introduced in Scotland. immense—and highly paid—experience of However, there is a bottom line in all of this: from defending the indefensible. Although his speech the body language of the Labour members who was extremely erudite and articulate, he contributed to the debate, it is as clear as the nose deliberately evaded the issues at hand because on our faces that the Labour dog is being wagged he knows that what is proposed is indefensible. by the Liberal tail. How much longer can the guys in the Labour Party take this sort of thing? Labour Let us consider some of the other speeches. In members know that the proposal is totally and opening the debate, Robert Brown said that we utterly wrong. should have the confidence and maturity to go ahead with the establishment of a commissioner. I will now address some of the points that Jim He highlighted some serious issues, such as Wallace made. I acknowledge freely and frankly people trafficking, but how on earth will the evils of that both he and his party have taken a consistent that practice be combated by the bill? We have a line on this matter. We Conservatives have problem with people trafficking, but we need to changed our attitude from the position that we took know what the police and the Executive are doing seven years ago. First, advice that may not have about it. Robert Brown sold the bill to us on a false been available at that time is freely available now. prospectus; the fact of the matter is that what I am sure that Gordon Jackson could introduce should be happening is not happening, and the bill Jim Wallace to a number of human rights will not make a whit of difference. advocates up the road who would be very pleased to provide advice, for a consideration. I also have Margaret Mitchell underlined the problem and little doubt that it would be totally and utterly stated that the costs of the commissioner would sound. grow. That was denied by some members, but the game was given away by Mike Pringle when he Again, even from Jim Wallace’s perspective, is said that he hoped that the commissioner’s there any better way of overselling a case than to powers would increase considerably. A exaggerate it? If the bill is not passed today, what considerable increase in powers would bring a aspects that he raised will materialise? Will it be considerable increase in costs. Although £1 million torture? Will we lose the right to free elections? might not be all that much in the great scheme of Will there be wrongful imprisonment? Jim Wallace things, what will the commissioner cost at the end narrated a long litany of what human rights is all of the day when, like Topsy, the body’s role will about, but if the bill goes through today, nothing grow and grow? will change. One of the other things that is wrong with the bill Patrick Harvie: Will the member give way? is that it attempts to persuade people that The Deputy Presiding Officer: No. The individual cases will be dealt with. We had to pare member is in his last minute. away the various skins of the argument before we got to the bottom of that one. Members who came Bill Aitken: We in Scotland have an excellent new to the bill, as I did, eventually got to the point human rights record. Indeed, it has always been at which it became clear that the proposed so and I am sure that, insofar as any of us in the commission cannot deal with individual cases. It is chamber are concerned, it will always be so. The quite wrong that that impression was created. bill is irrelevant and unnecessary. Put simply, it is Liberal party posturing at the expense of the Pauline McNeill: Mr Aitken talks about peeling taxpayer. away the skin. It would be helpful if at some point he could outline whether Margaret Mitchell’s position on the bill is the Conservative position. 16:38 Are the Conservatives voting down the general Mr Kenny MacAskill (Lothians) (SNP): The principles of the bill or should someone—an debate has been excellent. A great number of ombudsman or another person—hold the human excellent speeches have been made from all parts rights function? of the chamber. Indeed, I found myself agreeing Bill Aitken: We will vote against the general with members with whom I would not normally be principles of the bill for a number of reasons. The bracketed. Executive has more commissioners than it knows

†459 25181 3 MAY 2006 25182

We have, however, to remind ourselves what we correct nonsense run wild. Patrick Harvie are dealing with today. As with any of our stage 1 mentioned such attitudes. It should be possible to debates, we are looking at the general principles regard human rights as a matter not just for the of a bill. At some points, a parallel debate seemed prisoner who must endure the indignity of slopping to emerge. Indeed, it was kicked off by the out but for the old biddy who is entitled to dignity minister, who focused, to some extent, on the and respect in their old age and who is often not general principles of human rights. treated with such respect. Human rights are about not just the cases that Tony Kelly and other such I am not against the general principles of human solicitors take on—good luck to them—but the rights—I see that Conservative members are daily lives of individuals. nodding—but we have to address the general principles of what we are asked to address, and Understanding of human rights is evolving. We today that is the general principles of the Scottish should acknowledge that responsibilities are a Commissioner for Human Rights Bill. I found corollary of rights and vice versa. During recent myself agreeing with Jackie Baillie when she said years the perception has grown that we have that a member could oppose the detail of the bill rights but others have responsibilities. Society is without necessarily disagreeing with its wider much more complicated than it used to be and aspects. The SNP disagrees with the bill as it although in some ways the state is receding, in currently stands, but we have no doubt about our others our interaction with the state is increasing support for the principles of human rights and for and ever present. We live in a world in which the principle of a commission to address human people travel to other countries, communicate rights. We need one because of the society in through the internet and have identity cards, for which we live. example. I support the establishment of a commission that would decide what constitutes Human rights is an evolving concept. Phil Gallie human rights and how far such rights extend. and Jim Wallace mentioned that. The latter said, Some matters are self-evidently human rights: the correctly, that we have to address responsibilities. right to life; the right to liberty; the right to Robert Brown: I am interested in the support education; and the right to water and sanitation. the member is giving the idea of a Scottish human Pauline McNeill: The Justice 1 Committee rights commission, which is essentially at the heart noted that the bill would provide no checks and of the bill. Will he develop that idea and give us balances in that the proposed commissioner would the benefit of his guidance as to what should be not be required to present their objectives to the different about the form in which it is set up? Parliament. The Executive has conceded that a Mr MacAskill: We would start off by saying that strategic plan should be drawn up. Does the the bill that is before us is entitled the Scottish member agree that it is important that the Commissioner for Human Rights Bill. The organisation or person who is charged with nomenclature of the bill does not matter to the defending human rights should take a long-term or minister, but we have to get some of the thematic view on what human rights means, to fundamentals right. avoid the response that is constantly given on such matters? We heard the points that Mike Pringle made. If we are to allay legitimate concerns that the bill is Mr MacAskill: A strategic plan is important. The no more than advertising blurb, the proposed person or organisation should have two functions: commission must be given powers. The Scottish first, to react to and address instances of injustice legal system has a tradition of amicus curiae and I that arise; secondly, to peruse our evolving society have no difficulty in supporting an approach in so that such matters can be addressed. An which a commission would have the right to approach that is appropriate in 2006 will not participate in certain circumstances. Such necessarily be appropriate in 2016. We must build participation would be perfectly legitimate, but the the organisation round what we want and not bill provides for no powers in that regard. The bill simply round a soundbite or slogan. lacks detail in a variety of ways. Des McNulty: Does the member agree that the We have debated not the general principles of functions that he outlines are the job of the the bill but the general principle of human rights, Parliament and not of a human rights which we fully support. The minister tended to take commissioner? such a line in his speech. We tend to agree with Mr MacAskill: The roles would not be mutually Pauline McNeill and others. Stewart Stevenson exclusive. The Parliament has a specific role, but clearly set out our position. Mary Mulligan made parliamentarians cannot attend to every issue at the valid point that we must educate people about all times. It could be argued that a commission of human rights. As Gordon Jackson and other the great and the good could take time over the members said, there is a perception that human matter, because the Parliament is not the fount of rights is a field for do-gooders and is politically

†460 25183 3 MAY 2006 25184 all wisdom, even though we hope to get things We might think that those matters are far right every time. removed from Scotland and from the matters that we are considering but, as many of my Labour We must address the concerns that Mr McNulty colleagues and some Liberal colleagues have and Mr Morgan expressed. The focus of the bill is mentioned, the price of human rights is eternal wrong and we must ensure that we find the right vigilance. Over the years, I have been involved focus. We cannot simply build a bill round a wish with many members of the Parliament in list; we must decide what we want and give a campaigns on some of the issues that I have commission the remit and powers that will enable mentioned to try to promote human rights and deal it to deliver those objectives. The bill does not do with international and national situations. We must that, which opens it to criticism from members maintain that eternal vigilance; we can never be such as Mr Morgan and Mr McNulty. Such complacent or take it for granted that we will not criticism will become a cacophony from the public slip or that human rights will not be eroded. if the bill is passed unamended—we ain’t seen nothing yet. Phil Gallie: I have every sympathy with the difficulties that others experience, but does the Our position is simple. We accept absolutely the minister acknowledge that the purpose of the bill is general principles of human rights, but we to appoint a commissioner to fill what the Justice 1 absolutely do not think that the bill as it stands is Committee decided is a very narrow gap? the best vehicle for delivering human rights. We will not support the general principles of the bill Cathy Jamieson: I will come to what the but, if the minister amends the bill appropriately, committee said. During the debate, members have our position will be reviewed. acknowledged the involvement of various people in ensuring that human rights issues were embedded in the Scotland Act 1998. 16:45 The Minister for Justice (Cathy Jamieson): I Phil Gallie talked about the Justice 1 thank the members who have spoken in today’s Committee’s report. It is unprecedented that the debate, which has been a constructive and useful committee did not take a view on whether to discussion. As I have said before, the Parliament support the general principles of the bill. During is at its best when it deals with difficult issues. We the debate, we have heard the reasons why the should never be afraid to debate and try to resolve members of the committee came to their difficult issues. The Executive should always be conclusions. Generally speaking, all members, prepared to listen to what committees say on including those who have said that they will not proposed legislation and to try to improve it. support the bill or are waiting to find out what we do with it, have spoken of their commitment to I will respond to the particular points that human rights. We heard a powerful speech from members have made, but first I would like to say Gordon Jackson, who was not in any way trying to that several members have questioned the need defend the indefensible, as Bill Aitken suggested. for a human rights commissioner or commission and that many have stressed how well we deal Gordon Jackson put on record why all of us with the issue in Scotland, either through our should take an interest in human rights. If courts system or in the Parliament. That is members take on board those comments and absolutely true and we should acknowledge that believe in the principles of human rights, they have work, but it may be worth remembering that a responsibility to ensure that the bill is amended awareness of human rights is relatively new in at stage 2 in a way that allows us to tackle in the some parts of the western world. best interests of the people of Scotland the issues that have been raised today. It is just more than 60 years since the end of the second world war, during which absolute atrocities I noted that the SNP said that it will abstain, were committed. There was massive although there seemed to be a bit of a difference discrimination against ethnic and social groups, of opinion—perhaps it was just a nuance— which at that stage some people considered between Stewart Stevenson’s opening comments acceptable. It is only 12 years since the Rwandan and Kenny MacAskill’s winding-up speech. Kenny genocide and 12 years since the fall of apartheid. MacAskill seemed in many ways to be arguing for We live in a world in which it is still considered supporting the general principles of the bill, with acceptable in some areas for women to be denied the opportunity to amend it at stage 2. In the spirit education, for young children to be sent out to of cross-party co-operation, I would certainly work, for industries to pollute the environment, for welcome Kenny MacAskill’s close interest in the people to be imprisoned on account of their process of amending the bill. religious or political beliefs and for the state to We know where the Tories are coming from: we have the power of life and death in relation to heard that from Margaret Mitchell and Phil Gallie. infringements that we consider relatively minor. Despite the fact that they say they are generally

†461 25185 3 MAY 2006 25186

supportive of the principle of human rights, they It is important to put it on record that we intend seem to have made a bit of an about-turn or flip- to consult during stage 2 on amendments that flop, given where they were previously. However, would require the commission for human rights to we have come to expect that from the Tories. I publish a strategic plan on which it would have to hope that, if the general principles of the bill are consult before laying it before Parliament. We will agreed to today, the Tories will commit to also consider the requirement for the considering how best it can be amended. commissioner to give notice when seeking access to places of detention. Those are things that the It is important to acknowledge that the Executive committee asked us to consider. has taken account of the points that Pauline McNeill and others made during the committee’s A plethora of commissioners has been referred deliberations. To counter some of the criticisms to during the debate and many valid points have that the Conservatives made, I say that although been made about how commissioners work the bill is a partnership agreement commitment, together and how various bodies avoid duplicating for which we make no apology, it is right and work and ensure that they bring some added value proper that all members, including members of the to the process. We need to consider such issues Labour Party, have raised their concerns about it, during stage 2. as Mary Mulligan, Pauline McNeill and Des It is important to state, as Robert Brown said in McNulty have done. We have taken account of his response to the committee, that the Executive some of the points that the committee raised. is more than willing to consider suggestions that Robert Brown has written to the committee to pick have been made this afternoon and any other up on some of the points that were made, which it points that are raised regarding changes that is important to put on the record. might further improve the bill. We have made a commitment to consider I hope that we have given an indication that we creating a commission instead of a commissioner. are willing to make some of the specific changes The committee felt that it was not right and proper that the committee requested in its report. We for one individual to have such power vested in have lengthened the timetable to allow more time them that they would cut across the powers and to consider issues that will be raised and to ensure duties of the Parliament or would simply take on that we can continue to consult the individual their own agenda, rather than have a particular members who have concerns about the bill. I hope focus. that that will enable members to support the Patrick Harvie: Will the minister explain why, general principles of the bill at stage 1. given the partnership commitment to establish a commission, the Executive came to the view that it wanted only a commissioner—a position that it is now having to reverse? Cathy Jamieson: Hindsight is a wonderful thing. The important thing is that we believe that there is a gap—albeit the committee suggested that it was fairly narrow. It is important that we get a process and structure that will deliver on the promotion of human rights in the way that was first envisaged and discussed throughout the consultation process. If, rather than having one individual, there is the opportunity to draw in the expertise of a wider range of individuals, I hope that we will be able to deliver a better quality of service for some of the people who most need attention to be paid to their human rights. It is easy for us to stand up in Parliament and say that everything is all right: we all enjoy a considerable number of human rights. People in disadvantaged communities and people in a minority who feel that their particular conditions are not being recognised and that they have no voice must benefit from the process. That is why the commitment to consider how we should amend the bill to make clear the types of situation that we want to tackle is important.

†462 25187 3 MAY 2006 25188

Scottish Commissioner for Human Rights Bill: Financial Resolution

16:55 The Presiding Officer (Mr George Reid): The next item of business is consideration of a financial resolution. I ask Cathy Jamieson to move motion S2M-3948, on the financial resolution in respect of the Scottish Commissioner for Human Rights Bill. Motion moved, That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Scottish Commissioner for Human Rights Bill, agrees to any expenditure of a kind referred to in paragraph 3(b)(ii) of Rule 9.12 of the Parliament’s Standing Orders arising in consequence of the Act.—[Cathy Jamieson.]

16:56 Meeting suspended.

†463 25191 3 MAY 2006 25192

Peattie, Cathy (Falkirk East) (Lab) Decision Time Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Radcliffe, Nora (Gordon) (LD) 16:59 Robson, Euan (Roxburgh and Berwickshire) (LD) The Presiding Officer (Mr George Reid): Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Ruskell, Mr Mark (Mid Scotland and Fife) (Green) There are three questions to be put as a result of Scott, Eleanor (Highlands and Islands) (Green) today’s business. The first question is, that motion Scott, Tavish (Shetland) (LD) S2M-3908, in the name of Robert Brown, on the Smith, Elaine (Coatbridge and Chryston) (Lab) general principles of the Scottish Commissioner Smith, Iain (North East Fife) (LD) for Human Rights Bill, be agreed to. Are we Smith, Margaret (Edinburgh West) (LD) agreed? Stephen, Nicol (Aberdeen South) (LD) Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) Members: No. (LD) Wallace, Mr Jim (Orkney) (LD) The Presiding Officer: There will be a division. Whitefield, Karen (Airdrie and Shotts) (Lab) FOR Wilson, Allan (Cunninghame North) (Lab)

Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) AGAINST Baillie, Jackie (Dumbarton) (Lab) Aitken, Bill (Glasgow) (Con) Baird, Shiona (North East Scotland) (Green) Brocklebank, Mr Ted (Mid Scotland and Fife) (Con) Baker, Richard (North East Scotland) (Lab) Brownlee, Derek (South of Scotland) (Con) Ballance, Chris (South of Scotland) (Green) Davidson, Mr David (North East Scotland) (Con) Ballard, Mark (Lothians) (Green) Douglas-Hamilton, Lord James (Lothians) (Con) Barrie, Scott (Dunfermline West) (Lab) Fergusson, Alex (Galloway and Upper Nithsdale) (Con) Boyack, Sarah (Edinburgh Central) (Lab) Fraser, Murdo (Mid Scotland and Fife) (Con) Brankin, Rhona (Midlothian) (Lab) Gallie, Phil (South of Scotland) (Con) Brown, Robert (Glasgow) (LD) Goldie, Miss Annabel (West of Scotland) (Con) Butler, Bill (Glasgow Anniesland) (Lab) Johnstone, Alex (North East Scotland) (Con) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) McGrigor, Mr Jamie (Highlands and Islands) (Con) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) McLetchie, David (Edinburgh Pentlands) (Con) Curran, Ms Margaret (Glasgow Baillieston) (Lab) Milne, Mrs Nanette (North East Scotland) (Con) Eadie, Helen (Dunfermline East) (Lab) Mitchell, Margaret (Central Scotland) (Con) Ferguson, Patricia (Glasgow Maryhill) (Lab) Monteith, Mr Brian (Mid Scotland and Fife) (Ind) Finnie, Ross (West of Scotland) (LD) Petrie, Dave (Highlands and Islands) (Con) Gillon, Karen (Clydesdale) (Lab) Scott, John (Ayr) (Con) Glen, Marlyn (North East Scotland) (Lab) Tosh, Murray (West of Scotland) (Con) Godman, Trish (West Renfrewshire) (Lab) Gordon, Mr Charlie (Glasgow Cathcart) (Lab) ABSTENTIONS Gorrie, Donald (Central Scotland) (LD) Adam, Brian (Aberdeen North) (SNP) Harper, Robin (Lothians) (Green) Byrne, Ms Rosemary (South of Scotland) (SSP) Harvie, Patrick (Glasgow) (Green) Crawford, Bruce (Mid Scotland and Fife) (SNP) Henry, Hugh (Paisley South) (Lab) Curran, Frances (West of Scotland) (SSP) Home Robertson, John (East Lothian) (Lab) Fox, Colin (Lothians) (SSP) Hughes, Janis (Glasgow Rutherglen) (Lab) Grahame, Christine (South of Scotland) (SNP) Jackson, Gordon (Glasgow Govan) (Lab) Hyslop, Fiona (Lothians) (SNP) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) Ingram, Mr Adam (South of Scotland) (SNP) (Lab) Kane, Rosie (Glasgow) (SSP) Jamieson, Margaret (Kilmarnock and Loudoun) (Lab) Leckie, Carolyn (Central Scotland) (SSP) Kerr, Mr Andy (East Kilbride) (Lab) Lochhead, Richard (Moray) (SNP) Lamont, Johann (Glasgow Pollok) (Lab) MacAskill, Mr Kenny (Lothians) (SNP) Livingstone, Marilyn (Kirkcaldy) (Lab) Marwick, Tricia (Mid Scotland and Fife) (SNP) Lyon, George (Argyll and Bute) (LD) Matheson, Michael (Central Scotland) (SNP) Macdonald, Lewis (Aberdeen Central) (Lab) Maxwell, Mr Stewart (West of Scotland) (SNP) Maclean, Kate (Dundee West) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Macmillan, Maureen (Highlands and Islands) (Lab) Morgan, Alasdair (South of Scotland) (SNP) Martin, Paul (Glasgow Springburn) (Lab) Neil, Alex (Central Scotland) (SNP) May, Christine (Central Fife) (Lab) Stevenson, Stewart (Banff and Buchan) (SNP) McAveety, Mr Frank (Glasgow Shettleston) (Lab) Sturgeon, Nicola (Glasgow) (SNP) McCabe, Mr Tom (Hamilton South) (Lab) Swinney, Mr John (North Tayside) (SNP) McConnell, Mr Jack (Motherwell and Wishaw) (Lab) Turner, Dr Jean (Strathkelvin and Bearsden) (Ind) McMahon, Michael (Hamilton North and Bellshill) (Lab) Watt, Ms Maureen (North East Scotland) (SNP) McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) Welsh, Mr Andrew (Angus) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) White, Ms Sandra (Glasgow) (SNP) Morrison, Mr Alasdair (Western Isles) (Lab) Muldoon, Bristow (Livingston) (Lab) The Presiding Officer: The result of the division Mulligan, Mrs Mary (Linlithgow) (Lab) is: For 69, Against 18, Abstentions 25. Munro, John Farquhar (Ross, Skye and Inverness West) (LD) Motion agreed to. Murray, Dr Elaine (Dumfries) (Lab) Oldfather, Irene (Cunninghame South) (Lab) That the Parliament agrees to the general principles of Peacock, Peter (Highlands and Islands) (Lab) the Scottish Commissioner for Human Rights Bill.

†464 25193 3 MAY 2006 25194

The Presiding Officer: The next question is, Ruskell, Mr Mark (Mid Scotland and Fife) (Green) that motion S2M-3948, in the name of Tom Scott, Eleanor (Highlands and Islands) (Green) McCabe, on the financial resolution in respect of Scott, Tavish (Shetland) (LD) Smith, Elaine (Coatbridge and Chryston) (Lab) the Scottish Commissioner for Human Rights Bill, Smith, Iain (North East Fife) (LD) be agreed to. Are we agreed? Smith, Margaret (Edinburgh West) (LD) Stephen, Nicol (Aberdeen South) (LD) Members: No. Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) The Presiding Officer: There will be a division. (LD) Wallace, Mr Jim (Orkney) (LD) FOR Whitefield, Karen (Airdrie and Shotts) (Lab) Wilson, Allan (Cunninghame North) (Lab) Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) Baillie, Jackie (Dumbarton) (Lab) AGAINST Baird, Shiona (North East Scotland) (Green) Adam, Brian (Aberdeen North) (SNP) Baker, Richard (North East Scotland) (Lab) Crawford, Bruce (Mid Scotland and Fife) (SNP) Ballance, Chris (South of Scotland) (Green) Gibson, Rob (Highlands and Islands) (SNP) Ballard, Mark (Lothians) (Green) Grahame, Christine (South of Scotland) (SNP) Barrie, Scott (Dunfermline West) (Lab) Ingram, Mr Adam (South of Scotland) (SNP) Boyack, Sarah (Edinburgh Central) (Lab) Lochhead, Richard (Moray) (SNP) Brankin, Rhona (Midlothian) (Lab) MacAskill, Mr Kenny (Lothians) (SNP) Brown, Robert (Glasgow) (LD) Marwick, Tricia (Mid Scotland and Fife) (SNP) Butler, Bill (Glasgow Anniesland) (Lab) Mather, Jim (Highlands and Islands) (SNP) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Matheson, Michael (Central Scotland) (SNP) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Maxwell, Mr Stewart (West of Scotland) (SNP) Curran, Ms Margaret (Glasgow Baillieston) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Eadie, Helen (Dunfermline East) (Lab) Monteith, Mr Brian (Mid Scotland and Fife) (Ind) Ferguson, Patricia (Glasgow Maryhill) (Lab) Morgan, Alasdair (South of Scotland) (SNP) Finnie, Ross (West of Scotland) (LD) Neil, Alex (Central Scotland) (SNP) Gillon, Karen (Clydesdale) (Lab) Stevenson, Stewart (Banff and Buchan) (SNP) Glen, Marlyn (North East Scotland) (Lab) Sturgeon, Nicola (Glasgow) (SNP) Godman, Trish (West Renfrewshire) (Lab) Swinney, Mr John (North Tayside) (SNP) Gordon, Mr Charlie (Glasgow Cathcart) (Lab) Watt, Ms Maureen (North East Scotland) (SNP) Gorrie, Donald (Central Scotland) (LD) Welsh, Mr Andrew (Angus) (SNP) Harper, Robin (Lothians) (Green) White, Ms Sandra (Glasgow) (SNP) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) ABSTENTIONS Home Robertson, John (East Lothian) (Lab) Aitken, Bill (Glasgow) (Con) Hughes, Janis (Glasgow Rutherglen) (Lab) Brocklebank, Mr Ted (Mid Scotland and Fife) (Con) Jackson, Gordon (Glasgow Govan) (Lab) Brownlee, Derek (South of Scotland) (Con) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) Byrne, Ms Rosemary (South of Scotland) (SSP) (Lab) Curran, Frances (West of Scotland) (SSP) Jamieson, Margaret (Kilmarnock and Loudoun) (Lab) Davidson, Mr David (North East Scotland) (Con) Kerr, Mr Andy (East Kilbride) (Lab) Douglas-Hamilton, Lord James (Lothians) (Con) Lamont, Johann (Glasgow Pollok) (Lab) Fergusson, Alex (Galloway and Upper Nithsdale) (Con) Livingstone, Marilyn (Kirkcaldy) (Lab) Fox, Colin (Lothians) (SSP) Lyon, George (Argyll and Bute) (LD) Fraser, Murdo (Mid Scotland and Fife) (Con) Macdonald, Lewis (Aberdeen Central) (Lab) Gallie, Phil (South of Scotland) (Con) Macintosh, Mr Kenneth (Eastwood) (Lab) Goldie, Miss Annabel (West of Scotland) (Con) Maclean, Kate (Dundee West) (Lab) Hyslop, Fiona (Lothians) (SNP) Macmillan, Maureen (Highlands and Islands) (Lab) Johnstone, Alex (North East Scotland) (Con) Martin, Paul (Glasgow Springburn) (Lab) Kane, Rosie (Glasgow) (SSP) May, Christine (Central Fife) (Lab) Leckie, Carolyn (Central Scotland) (SSP) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McGrigor, Mr Jamie (Highlands and Islands) (Con) McCabe, Mr Tom (Hamilton South) (Lab) McLetchie, David (Edinburgh Pentlands) (Con) McConnell, Mr Jack (Motherwell and Wishaw) (Lab) Milne, Mrs Nanette (North East Scotland) (Con) McMahon, Michael (Hamilton North and Bellshill) (Lab) Mitchell, Margaret (Central Scotland) (Con) McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) Petrie, Dave (Highlands and Islands) (Con) McNeill, Pauline (Glasgow Kelvin) (Lab) Scott, John (Ayr) (Con) Morrison, Mr Alasdair (Western Isles) (Lab) Tosh, Murray (West of Scotland) (Con) Muldoon, Bristow (Livingston) (Lab) Turner, Dr Jean (Strathkelvin and Bearsden) (Ind) Mulligan, Mrs Mary (Linlithgow) (Lab) Munro, John Farquhar (Ross, Skye and Inverness West) The Presiding Officer: The result of the division (LD) is: For 70, Against 21, Abstentions 24. Murray, Dr Elaine (Dumfries) (Lab) Oldfather, Irene (Cunninghame South) (Lab) Motion agreed to. Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) That the Parliament, for the purposes of any Act of the Pringle, Mike (Edinburgh South) (LD) Scottish Parliament resulting from the Scottish Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Commissioner for Human Rights Bill, agrees to any Radcliffe, Nora (Gordon) (LD) expenditure of a kind referred to in paragraph 3(b)(ii) of Robson, Euan (Roxburgh and Berwickshire) (LD) Rule 9.12 of the Parliament’s Standing Orders arising in Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) consequence of the Act.

†465

Justice 1 Committee

Robert Brown MSP All correspondence c/o: Deputy Minister for Education and Justice 1 Committee Clerks Young People Room T3.60 The Scottish Executive The Scottish Parliament Victoria Quay Edinburgh Edinburgh EH99 1SP EH6 6QQ Tel: 0131 348 5228 Type Talk Direct No. 18001 0131 348 5228 Fax: 0131 348 5252 [email protected]

24 August 2006

Dear Robert

Scottish Commissioner for Human Rights Bill

I am conscious that there will have been a considerable gap since the Committee produced its Stage 1 report, the Stage 1 debate taking place and the start of Stage 2 proceedings. I am aware that it has been decided that Stage 2 of the Bill should be completed by 29 September.

Given the gap in proceedings and the expectation that the Executive will be lodging a considerable number of amendments to give effect to your response to the Stage 1 report and the commitments you made during the Stage 1 debate, I have consulted with Members of the Committee to find out how they would like to proceed at Stage 2 to make best use of the time available to us.

Firstly, Members would like to see in advance the amendments (in draft form) that you are planning to lodge at Stage 2. This would be helpful as a means of assessing the direction in which the Executive is travelling on this Bill and it would also greatly assist Members in deciding whether to lodge amendments of their own at Stage 2.

Secondly, Members think it would be very useful to follow this up by having a short session with you and your officials to discuss the Executive's current thinking on the Bill and to answer any queries that Members have on the draft amendments.

On this basis, this session would take place on 13 September with 20 and 27 September being used for Stage 2.

1

†466

On this basis, the timetable for Stage 2 would look as follows:

• By 6 September: Receipt of letter from Deputy Minister with draft amendments attached • 13 September: Evidence session as outlined above with the Deputy Minister • 13 September: Deadline for lodging of Executive amendments for Day 1 • 15 September (noon): Deadline for lodging of backbench amendments for Day 1 • 20 September: SCHR Bill Stage 2 Day 1 • 20 September: Deadline for lodging of Executive amendments for Day 2 (if required) • 22 September (noon): Deadline for lodging of backbench amendments for Day 2 (if required) • 27 September: SCHR Bill Stage Day 2 (if required)

I hope you agree that this approach would be sensible in the context of this Bill. I should be grateful if you would let me know whether you are content to proceed in this manner.

Yours sincerely

Pauline McNeill MSP Convener, Justice 1 Committee

2

†467 abcdefghijklm = aÉéìíó=jáåáëíÉê=Ñçê=bÇìÅ~íáçå=C=vçìåÖ=mÉçéäÉ= sáÅíçêá~=nì~ó= = oçÄÉêí=_êçïå=jpm= bÇáåÄìêÖÜ=beS=Snn= = = Pauline McNeill MSP: qÉäÉéÜçåÉW=MUQR=TTQ=NTQN= Convener of the Justice 1 Committee ëÅçííáëÜKãáåáëíÉêë]ëÅçíä~åÇKÖëáKÖçîKìâ= c/o Justice 1 Committee Clerks ÜííéWLLïïïKëÅçíä~åÇKÖçîKìâ= Room T3.60 = The Scottish Parliament = Edinburgh = PM=^ìÖìëí== EH99 1SP

______

Dear Pauline

Scottish Commissioner for Human Rights Bill

Thank you for your helpful letter of 24 August. I am keen to work closely with the Committee to ensure that the Bill is robust, achieves the purposes approved by Parliament at Stage 1, and takes proper account of issues raised by the Committee’s Stage 1 scrutiny.

However, I am aware that Committee time is restricted, and that you are also under a pretty challenging timetable, both on this Bill and more generally. Apart from the Committee’s own interest, it is important that Executive amendments are lodged as early as possible to give other Members who have expressed interest in the Bill the chance to consider them.

I propose therefore that the Executive should lodge our amendments in good time to allow the Committee to consider them at the planned Stage 2 sessions. This would seem to me to be the best way to reconcile the demands of parliamentary procedure with the Committee’s natural and reasonable desire to have as much time as possible to consider the Executive’s amendments.

I do want to assure the Committee, though, that I wish to be able to respond fully and sympathetically to any valid issues raised by the Committee on the details.

You also suggest that I and my officials could give evidence to the Committee on our latest thinking on the Bill. I think it would be helpful for me to make a short statement on the Bill as a whole at the start of the meeting on 13 September, which I expect would focus on the issues arising from Stage 1, and take any questions the Committee might have. This would be informed by the amendments the Executive has lodged at that point.

SE Approved †468 Version 1.1 However, we are also happy to discuss any aspect of the Bill with the Committee outwith the Stage 2 sessions, formally or informally, and I would be glad to identify a slot next week for this if it were helpful.

I am copying this letter to Margaret Curran and Cathy Jamieson.

ROBERT E BROWN

SE Approved Version 1.1 †469

Justice 1 Committee

Robert Brown MSP All correspondence c/o: Deputy Minister for Education and Justice 1 Committee Clerks Young People Room T3.60 The Scottish Executive The Scottish Parliament Victoria Quay Edinburgh Edinburgh EH99 1SP EH6 6QQ Tel: 0131 348 5228 Type Talk Direct No. 18001 0131 348 5228 Fax: 0131 348 5252 [email protected]

31 August 2006

Dear Robert

Scottish Commissioner for Human Rights Bill

Thank you for your letter of 30 August.

I am disappointed that you have not responded more positively to the Committee’s request for a short session with you and your officials on 13 September to discuss the Executive's current thinking on the Bill and to answer any queries that Members may have. Due to other commitments it is extremely unlikely that a discussion, whether formal or informal, can be arranged for next week.

As I said in my previous letter, given the gap in proceedings and the expectation that the Executive will be lodging a considerable number of amendments to he Bill to give effect to your response to the Stage 1 report and the commitments you made during the Stage 1 debate, the proposed meeting on 13 September was intended to assist Committee members in deciding whether to lodge amendments of their own at Stage 2.

Following discussions between the clerks and your officials, I understand that the Executive expects to be in a position to formally lodge amendments to the Bill on Wednesday 6 September. In the circumstances, I consider it essential that Members are given a minimum of two weeks to consider these prior to the first Stage 2 session. I have, therefore, decided to begin Stage 2 consideration on Wednesday 20 September. The target for consideration on this day will be the whole Bill although a further session on Wednesday 27 September is available if required. 1

†470

I am copying this letter to Margaret Curran and Cathy Jamieson.

Yours sincerely

Pauline McNeill MSP Convener, Justice 1 Committee

2

†471  = aÉéìíó=jáåáëíÉê=Ñçê=bÇìÅ~íáçå=C=vçìåÖ=mÉçéäÉ= sáÅíçêá~=nì~ó= = Robert Brown=jpm= bÇáåÄìêÖÜ=beS=Snn= = = Pauline McNeill MSP: qÉäÉéÜçåÉW=MUQR=TTQ=NTQN= Convener of the Justice 1 Committee ëÅçííáëÜKãáåáëíÉêë]ëÅçíä~åÇKÖëáKÖçîKìâ= c/o Justice 1 Committee Clerks ÜííéWLLïïïKëÅçíä~åÇKÖçîKìâ= Room T3.60 = The Scottish Parliament = = Edinburgh S=pÉéíÉãÄÉê=OMMS= EH99 1SP

______

Dear Pauline

Scottish Commissioner for Human Rights Bill

Thank you for your letter of 31 August in reply to mine of 30 August.

We have since spoken further about the arrangements for Stage 2 of the SCHR Bill, and I confirm that the Executive amendments were lodged today. This is in line with the timetable suggested in your letter, and so I trust that this will give Members of the Committee sufficient time to consider the amendments before formal consideration begins on 20 September. Most of the amendments are to deliver commitments given by the Executive at Stage 1 or otherwise to address points raised during consideration of the Bill, and so I hope will be welcomed by the Committee. However, as I said in my previous letter, I remain happy to discuss any aspect of the amendments or of the Bill generally with Committee Members formally or informally, and collectively or individually, before the start of formal Stage 2 consideration if that would be thought to be helpful.

In the meantime, I attach a paper summarising the Executive amendments. This is aimed at explaining their purpose, including where appropriate showing how they would deliver the commitments given by the Executive at Stage 1. When we spoke you agreed that this would be helpful, and I am glad to offer it to Members of the Committee.

I am copying this letter to Margaret Curran and Cathy Jamieson.

ROBERT E BROWN

   SE Approved †472 Version 1.1 Scottish commissioner for human rights Bill: stage 2 AMENDMENTS The table below summarises the effect of the Executive amendments lodged on 6 September, with reference where appropriate to the commitment by the Executive at Stage 1 that they are aimed at delivering.

Amendment PURPOSE number 1, 3-4, 8-10, These are all drafting amendments, to make changes consequential 13-19, 22-38, on the decision to move from creating a Commissioner to a 40-46, 48, 51- Commission, e.g. by changing references to “Commissioner” to 63, 65-66, 68- instead read “Commission” – for substantive explanation see 73, 75, 77, 79- amendment 2 below. 82, 84-85, 87- 94, 96-103 5,7 To clarify and refocus SCHR’s general duty in response to adverse comments at Stage 1 by stating it as being to promote, and encourage best practice in relation to, human rights; with “promote” defined as being to promote awareness and understanding of, and respect for, those rights.

6 To remove the specific obligation on SCHR to “encourage” public authorities to comply with section 6 of the Human Rights Act, in response to the need for this being questioned at Stage 1.

11 To meet the desire for SCHR to address needs of those whose human rights needs are not sufficiently recognised at present, e.g. “disadvantaged” people and groups.

12, 20 To recast the specific duty on SCHR to monitor the law and the policies and practices of public authorities, in response to concerns expressed at Stage 1 by the Law Society of Scotland and the Committee, to make it clear that this would relate to areas of the law rather than the law as a whole and be discretionary and subsidiary to the SCHR’s general duty rather than a free-standing obligation. The intention that this should be an adjunct to the SCHR’s main promotional and awareness-raising functions will be shown by this provision (currently section 3) being placed after the current section 4, which sets out the SCHR’s power to engage in education etc activities, instead of before that section as in the Bill as introduced.

21 To impose a duty on the SCHR to produce a strategic plan, as promised by the Executive in its response to the Stage 1 Report. Each such plan would cover a period of 4 years, so as to coincide with the life of each Parliament. The plans would set out the SCHR’s objectives and priorities, the activities or kinds of activities in which it proposes to undertake, and expected timetables for

†473 these. The SCHR would be required to consult the Parliamentary corporation and others before laying such plans before the Parliament. (This is broadly similar to the equivalent duty placed on the GB Commission for Equality and Human Rights by the Equality Act 2006, to which reference was made during Stage 1.)

39 To disapply for the purpose of the SCHR’s power to obtain information the restriction on disclosure of information by the Scottish Legal Aid Board contained in section 34 of the Legal Aid (Scotland) Act 1986: this change has been requested by SLAB and a similar provision appears in the Scottish Public Services Act 2002.

64, 67, 74, 76, To address drafting points in relation to section 11, to make clear 78 that the provisions relating to the SCHR’s statutory power of intervention in civil proceedings will apply without prejudice to any ability to intervene in any type of proceedings under existing law and practice.

83, 86 To remove the requirement for SCHR annual reports to include a summary of the actions the SCHR proposes to take in the following year in pursuance of its general duty. This is because this information will now be included in the strategic plan that the SCHR is to be obliged to produce. Amendment 83 is purely a drafting change to require annual reports to include a summary of “activities undertaken” rather than “action taken”, to secure consistency with the proposed new strategic plan provision. 95 To move section 14 (which gives the SCHR power to co-operate with other bodies, and enjoins it to avoid unnecessary duplication) to after section 4 so as to give it more prominence on the face of the Bill and thus a greater emphasis.

2 To effect the move from a Commissioner to a Commission, in pursuance of the commitment given by the Executive in its response to the Stage 1 Report, by replacing Schedule 1 to the Bill (which sets out the detailed provisions to govern the operation and accountability of the SCHR) in its entirety. Much of the new Schedule 1 repeats provisions in the existing version, but there are some substantive differences most of which are aimed at delivering other Stage 1 commitments. Particular points to note: x the SCHR is to comprise a Chair and up to 4 other members,, with the Chair being appointed by Her Majesty on the nomination of the Parliament as was proposed for the Commissioner in the Bill as introduced, with the other members being appointed by the parliamentary corporation(paragraph 1) x as promised at Stage 1, the grounds on which members can

†474 be removed from office will be specified on the face of the legislation. Also, a Parliamentary resolution for removal of a member will require to be voted for by at least two-thirds of MSPs voting. Both of these changes are in line with recommendations of the Procedures Committee’s Report on Crown Appointments that was published earlier this year; x the requirement for the SCHR to have a chief executive would be removed, again as promised at Stage 1: as a consequence, the SCHR’s accountable officer (who was to have been the chief executive) will be a member of the SCHR or of its staff to be appointed by the Parliamentary corporation; x the express prohibition on members of the SCHR holding other offices or employment without the Parliamentary corporation’s consent would be removed, so as to remove any apparent (and unintended) implication that all members should be full-time; x also as promised at Stage 1, there will be an explicit requirement for the SCHR’s expenditure plans to be submitted to, and approved by, the Parliamentary corporation; and x the SCHR would be brought within the remits of the Scottish Public Services Ombudsman and the Scottish Information Commissioner.

47, 49-50 To remove the requirement in Schedule 3 of the Bill for the SCHR to give notice before exercising its power to enter places of detention in connection with inquiries, in response to the criticism of this requirement in the Stage 1 Report. As a consequence the provision allowing a person to whom such notice has been given to seek its cancellation by a sheriff on certain specified grounds would also be removed. However, the Bill currently requires a person seeking to exercise this power to provide evidence of his entitlement to do so, and amendment 49 would clarify this by providing that the power cannot be exercised until such evidence is produced.

†475 Scottish Commissioner for Human Rights Bill

1st Marshalled List of Amendments for Stage 2

The Bill will be considered in the following order—

Section 1 Schedule 1 Sections 2 to 7 Schedule 2 Sections 8 Schedule 3 Sections 9 to 19 Long Title

Amendments marked * are new (including manuscript amendments) or have been altered.

Section 1

Des McNulty 120 In section 1, page 1, line 7, leave out from to end of line 8 and insert

Des McNulty 121 In section 1, page 1, line 9, leave out from beginning to in line 10 and insert

Robert Brown 1 Leave out section 1 and insert—

Schedule 1

Des McNulty 122 In schedule 1, page 13, line 23, leave out paragraph 10 and insert—

Des McNulty 123 In schedule 1, page 13, leave out line 26

SP Bill 48-ML1 1 Session 2 (2006) †476 Des McNulty 124 In schedule 1, page 13, line 28, leave out and insert

Des McNulty 125 In schedule 1, page 13, line 29, leave out

Des McNulty 126 In schedule 1, page 13, leave out lines 32 and 33

Des McNulty 127 In schedule 1, page 14, line 5, leave out and insert

Des McNulty 128 In schedule 1, page 14, line 10, leave out from second to end of line 11

Des McNulty 129 In schedule 1, page 14, leave out lines 14 to 19

Robert Brown 2 Leave out schedule 1 and insert—

SCOTTISH COMMISSION FOR HUMAN RIGHTS

Membership 1 (1) The Commission consists of the following members— (a) a member appointed to chair the Commission, and (b) not more than 4 other members. (2) The member appointed to chair the Commission is to be an individual appointed by Her Majesty on the nomination of the Scottish Parliament. (3) The other members are to be individuals appointed by the Parliamentary corporation.

Status 2 The Commission— (a) is not a servant or agent of the Crown, and (b) has no status, immunity or privilege of the Crown.

2 †477 Independence 3 (1) The Commission, in the exercise of its functions, is not to be subject to the direction or control of— (a) any member of the Parliament, (b) any member of the Scottish Executive, or (c) the Parliamentary corporation. (2) Sub-paragraph (1) is subject to section 12(3), and paragraphs 8(2)(b), 10, 11 and 14(1) of this schedule and paragraph 5 of schedule 2.

Disqualification 4 (1) A person is disqualified from appointment, and from holding office, as a member of the Commission if that person is— (a) a member of the House of Commons, (b) a member of the Scottish Parliament, or (c) a member of the European Parliament. (2) A person is also disqualified from such appointment if that person has, in the relevant period, held any of the offices set out in sub-paragraph (1)(a) to (c). (3) The relevant period is— (a) in relation to the appointment of a member to chair the Commission, a year preceding the date of nomination, (b) in relation to the appointment of any other member of the Commission, a year preceding the proposed date of appointment.

Terms of office and remuneration 5 (1) Each member of the Commission— (a) holds office for such period not exceeding five years as the Parliamentary corporation, at the time of appointment, may determine, and (b) is eligible for reappointment to the same office (whether the reappointment is for a consecutive period or otherwise) but reappointment for a third period is not competent. (2) The member appointed to chair the Commission may be— (a) relieved of office by Her Majesty at the member’s request, or (b) removed from office by Her Majesty if condition A or B is satisfied. (3) Any other member of the Commission may be— (a) relieved of office by the Parliamentary corporation at the member’s request, or (b) removed from office by the Parliamentary corporation if condition A or B is satisfied. (4) Condition A is that— (a) the Parliamentary corporation is satisfied that the member has breached the member’s terms of appointment, and

3 †478 (b) the Parliament resolves that the member should be removed from office for that reason. (5) Condition B is that the Parliament resolves that it has lost confidence in the member. (6) A resolution under sub-paragraph (4) or (5), if passed on division, must be voted for by not less than two thirds of those voting. (7) Each member of the Commission is entitled to such— (a) remuneration, and (b) allowances, as the Parliamentary corporation may determine. (8) In other respects, each member of the Commission holds office on such terms and conditions as the Parliamentary corporation may determine.

Pensions etc. 6 (1) The Commission may, with the approval of the Parliamentary corporation, make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of the Commission and such arrangements may include, in particular— (a) the making of contributions or payments towards provision for such pensions, allowances, or gratuities, and (b) the establishing and administering of one or more pension schemes. (2) References in sub-paragraph (1) to pensions, allowances and gratuities include references to, as the case may be, pensions, allowances or gratuities by way of compensation for loss of office.

Proceedings etc. 7 (1) The Commission may regulate its own procedure (including any quorum). (2) Where the member appointed to chair the Commission is not present at a meeting of the Commission, any other member of the Commission may chair the meeting. (3) The validity of any acts of the Commission is not affected by any— (a) defect in the nomination of a member of the Commission, or (b) disqualification from appointment as a member of the Commission.

General powers 8 (1) The Commission may do anything which appears necessary or expedient for the purpose of, or in connection with, or which appears conducive to, the exercise of its functions. (2) In particular, the Commission may— (a) enter into contracts, and (b) with the consent of the Parliamentary corporation, acquire and dispose of land.

4 †479 Delegation 9 (1) Any function of the Commission may be exercised on its behalf— (a) by any person (whether or not a member of the Commission or its staff) authorised by the Commission to do so, and (b) to the extent so authorised. (2) Sub-paragraph (1) does not affect the Commission’s responsibility for the exercise of its functions.

Location of office 10 The Commission’s determination of the location of its office premises is subject to the approval of the Parliamentary corporation.

Staff 11 (1) The Commission may, with the approval of the Parliamentary corporation as to numbers, appoint staff. (2) The appointment of staff is to be on such terms and conditions as the Commission may, with the approval of the Parliamentary corporation, determine. (3) The Commission may, with the approval of the Parliamentary corporation, make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of staff. (4) References in sub-paragraph (3) to pensions, allowances and gratuities include references to, as the case may be, pensions, allowances or gratuities by way of compensation for loss of employment.

Accountable officer 12 (1) The Parliamentary corporation must designate a member of the Commission or of the Commission’s staff as the accountable officer for the purposes of this paragraph. (2) The functions of the accountable officer are— (a) signing the accounts of the expenditure and receipts of the Commission, (b) ensuring the propriety and regularity of the finances of the Commission, (c) ensuring that the resources of the Commission are used economically, efficiently and effectively, and (d) the duty set out in sub-paragraph (3), and the accountable officer is answerable to the Parliament for the exercise of those functions. (3) Where the accountable officer is required to act in some way but considers that to do so would be inconsistent with the proper performance of the functions specified in sub- paragraph (2)(a) to (c), the accountable officer must— (a) obtain written authority from the Commission before taking the action, and (b) send a copy of the authority as soon as possible to the Auditor General for Scotland.

5 †480 Finance 13 (1) The Parliamentary corporation is to pay— (a) the remuneration and allowances of each member of the Commission, and (b) any expenses incurred by the Commission in the exercise of its functions, so far as those expenses are not met out of sums received and applied by it under section 4(3). (2) The Commission must, before the start of each financial year, prepare proposals for its expenditure during the year and send the proposals to the Parliamentary corporation for approval by such date as the Parliamentary corporation may determine. (3) The Commission may, in the course of a financial year, prepare revised proposals for its expenditure during the remainder of the year and send the proposals to the Parliamentary corporation for approval. (4) Sub-paragraph (1)(b) does not require the Parliamentary corporation to pay any expenses incurred by the Commission which exceed, or are otherwise not covered by, any proposals approved under sub-paragraph (2) or (3). (5) However, the Parliamentary corporation may pay those expenses. (6) The financial year of the Commission is— (a) the period beginning with the date on which the Commission is established and ending with 31st March next following that date, and (b) each successive period of 12 months ending with 31st March.

Accounts and audit 14 (1) The Commission must, in accordance with such directions as the Scottish Ministers may give— (a) keep proper accounts and accounting records, (b) prepare annual accounts in respect of each financial year, and (c) send a copy of the annual accounts to the Auditor General for Scotland for auditing. (2) If requested by any person, the Commission must make available at any reasonable time, and without charge, in printed or electronic form, the audited accounts, so that they may be inspected by that person.

Scottish Public Services Ombudsman 15 In the Scottish Public Services Ombudsman Act 2002 (asp 11), in schedule 2 (which lists the authorities subject to investigation under that Act), in Part 2 (entries amendable by Order in Council), before paragraph 38 insert— “37B The Scottish Commission for Human Rights.”.

6 †481 Freedom of information 16 In the Freedom of Information (Scotland) Act 2002 (asp 13), in schedule 1 (which lists the Scottish public authorities subject to that Act), in Part 7 (other authorities), before paragraph 81 insert— “80B The Scottish Commission for Human Rights.”.>

Section 2

Robert Brown 3 In section 2, page 1, line 23, leave out first and insert

Robert Brown 4 In section 2, page 1, line 23, leave out second and insert

Robert Brown 5 In section 2, page 1, line 24, leave out

Robin Harper 104 In section 2, page 1, line 24, leave out and insert <, understanding and protection>

Robert Brown 6 In section 2, page 1, line 26, leave out from <, and> to end of line 3 on page 2

Robert Brown 7 In section 2, page 2, line 8, at end insert— <( ) In this section, “promote”, in relation to human rights, means promote awareness and understanding of, and respect for, those rights.>

Robin Harper 7A As an amendment to amendment 7, line 2, leave out and insert <, understanding and protection>

Robert Brown 8 In section 2, page 2, line 9, leave out and insert

Robert Brown 9 In section 2, page 2, line 10, leave out and insert

Robert Brown 10 In section 2, page 2, line 11, leave out and insert

7 †482 Robert Brown 11 In section 2, page 2, line 12, at end insert <, and ( ) human rights of those groups in society whose human rights are not, in the Commission’s opinion, otherwise being sufficiently promoted.>

Section 3

Robert Brown 12 Leave out section 3

Section 4

Robert Brown 13 In section 4, page 2, line 20, leave out and insert

Robert Brown 14 In section 4, page 2, line 20, leave out and insert

Robert Brown 15 In section 4, page 2, line 25, leave out and insert

Robert Brown 16 In section 4, page 2, line 25, leave out and insert

Robert Brown 17 In section 4, page 2, line 27, leave out and insert

Robert Brown 18 In section 4, page 2, line 28, leave out first and insert

Robert Brown 19 In section 4, page 2, line 28, leave out second and insert

After section 4

Robert Brown 20 After section 4, insert—

8 †483 5 (a) any area of the law of Scotland, or (b) any policies or practices of any Scottish public authorities.>

Pauline McNeill 20A As an amendment to amendment 20, line 6, at end insert— <(2) Prior to starting work in pursuance of subsection (1)(a) the Commission must consult the Scottish Law Commission.>

Robert Brown 21 After section 4, insert—

10 (b) the activities or kinds of activities it proposes to undertake during that period, and (c) a timetable for each of those activities or kinds of activities. (3) Before laying a strategic plan before the Parliament, the Commission must provide a draft of it to, and invite comments on it from— (a) the Parliamentary corporation, and

15 (b) such other persons as the Commission considers appropriate. (4) The Commission must arrange for the publication of each strategic plan laid by it before the Parliament. (5) The Commission may, at any time during a 4 year period, review the strategic plan for the period and lay a revised plan for the period before the Parliament.

20 (6) Subsections (3) to (5) apply to a revised plan as they apply to a strategic plan. (7) In this section, “4 year period” means— (a) the period of 4 years beginning with the day on which section 2 comes into force, and (b) each subsequent period of 4 years.>

Pauline McNeill 21A As an amendment to amendment 21, line 10, after second insert

9 †484 Section 5

Robert Brown 22 In section 5, page 2, line 32, leave out and insert

Robert Brown 23 In section 5, page 2, line 32, leave out and insert

Robin Harper 105 In section 5, page 2, line 36, at end insert

Robert Brown 24 In section 5, page 3, line 4, leave out and insert

Robert Brown 25 In section 5, page 3, line 17, leave out and insert

Robert Brown 26 In section 5, page 3, line 19, leave out and insert

Robert Brown 27 In section 5, page 3, line 23, leave out and insert

Robert Brown 28 In section 5, page 3, line 26, leave out and insert

Robert Brown 29 In section 5, page 3, line 29, leave out and insert

Section 6

Robert Brown 30 In section 6, page 3, line 32, leave out and insert

Robin Harper 106 In section 6, page 3, line 34, leave out subsections (2) to (8)

10 †485 Robert Brown 31 In section 6, page 3, line 34, leave out and insert

Robert Brown 32 In section 6, page 4, line 1, leave out and insert

Robert Brown 33 In section 6, page 4, line 3, leave out and insert

Robert Brown 34 In section 6, page 4, line 5, leave out and insert

Section 7

Robert Brown 35 In section 7, page 4, line 26, leave out and insert

Robin Harper 107 In section 7, page 4, line 26, leave out

Robin Harper 108 In section 7, page 4, line 32, leave out subsection (2)

Robert Brown 36 In section 7, page 4, line 35, leave out and insert

Robert Brown 37 In section 7, page 4, line 37, leave out and insert

Robert Brown 38 In section 7, page 4, line 38, leave out and insert

Robert Brown 39 In section 7, page 5, line 3, at end insert— <( ) In section 34(2) of the Legal Aid (Scotland) Act 1986 (c.47) (which specifies the purposes for which the restriction in section 34(1) of that Act on disclosure of information furnished to the Scottish Legal Aid Board does not apply), after paragraph (d) insert— “(e) for the purposes of an inquiry by the Scottish Commission for Human Rights under section 5 of the Scottish Commission for Human Rights Act 2006 (asp 00).”.>

11 †486 Schedule 2

Robert Brown 40 In schedule 2, page 15, line 11, leave out and insert

Robert Brown 41 In schedule 2, page 16, line 2, leave out and insert

Robert Brown 42 In schedule 2, page 16, line 3, leave out and insert

Robert Brown 43 In schedule 2, page 16, line 17, leave out and insert

Robert Brown 44 In schedule 2, page 16, line 20, leave out and insert

Robert Brown 45 In schedule 2, page 16, line 27, leave out and insert

Section 8

Robert Brown 46 In section 8, page 5, line 7, leave out and insert

Schedule 3

Robert Brown 47 In schedule 3, page 16, line 34, leave out paragraph 1

Robert Brown 48 In schedule 3, page 17, line 12, leave out and insert

Robert Brown 49 In schedule 3, page 17, line 14, at end insert—

12 †487 Robert Brown 50 In schedule 3, page 17, line 16, leave out paragraph 3

Robert Brown 51 In schedule 3, page 17, line 25, leave out and insert

Robert Brown 52 In schedule 3, page 17, line 26, leave out and insert

Section 9

Robin Harper 109 In section 9, page 5, line 25, leave out

Robert Brown 53 In section 9, page 5, line 25, leave out and insert

Robert Brown 54 In section 9, page 5, line 28, leave out and insert

Robert Brown 55 In section 9, page 5, line 29, leave out and insert

Robert Brown 56 In section 9, page 5, line 31, leave out and insert

Robert Brown 57 In section 9, page 5, line 33, leave out and insert

Robin Harper 110 In section 9, page 5, line 38, leave out subsection (5)

Section 10

Robert Brown 58 In section 10, page 6, line 3, leave out and insert

Robert Brown 59 In section 10, page 6, line 4, leave out and insert

13 †488 Robert Brown 60 In section 10, page 6, line 5, leave out and insert

Robert Brown 61 In section 10, page 6, line 7, leave out and insert

Robert Brown 62 In section 10, page 6, line 16, leave out and insert

Robert Brown 63 In section 10, page 6, line 16, leave out and insert

Section 11

Robert Brown 64 In section 11, page 6, line 25, leave out and insert

Robin Harper 111 In section 11, page 6, line 25, leave out and insert

Robin Harper 112 In section 11, page 6, line 25, leave out <, except children’s hearing proceedings> and insert

Robin Harper 112A As an amendment to amendment 112, line 2, at end insert

Robert Brown 65 In section 11, page 6, line 27, leave out and insert

Robert Brown 66 In section 11, page 6, line 32, leave out first and insert

Robert Brown 67 In section 11, page 6, line 32, after insert

Robert Brown 68 In section 11, page 6, line 32, leave out second and insert

14 †489 Robert Brown 69 In section 11, page 6, line 34, leave out and insert

Robert Brown 70 In section 11, page 6, line 36, leave out and insert

Robert Brown 71 In section 11, page 6, line 37, leave out and insert

Robert Brown 72 In section 11, page 7, line 1, leave out and insert

Robert Brown 73 In section 11, page 7, line 4, leave out and insert

Robert Brown 74 In section 11, page 7, line 4, after insert

Robert Brown 75 In section 11, page 7, line 5, leave out and insert

Robert Brown 76 In section 11, page 7, line 6, leave out and insert

Robert Brown 77 In section 11, page 7, line 7, leave out and insert

Robert Brown 78 In section 11, page 7, line 9, leave out and insert

Robert Brown 79 In section 11, page 7, line 9, leave out and insert

Robin Harper 113 In section 11, page 7, line 13, leave out <“civil> and insert <“legal>

Robin Harper 114 In section 11, page 7, leave out lines 15 to 18

15 †490 Robin Harper 115 In section 11, page 7, line 19, after insert <, High Court of Judiciary>

Robin Harper 116 In section 11, page 7, line 19, leave out

Robin Harper 117 In section 11, page 7, line 20, after insert

Robin Harper 118 Leave out section 11 and insert—

Section 12

Robert Brown 80 In section 12, page 7, line 23, leave out and insert

16 †491 Robert Brown 81 In section 12, page 7, line 24, leave out and insert

Robert Brown 82 In section 12, page 7, line 27, leave out and insert

Robert Brown 83 In section 12, page 7, line 29, leave out and insert

Robert Brown 84 In section 12, page 7, line 29, leave out and insert

Robert Brown 85 In section 12, page 7, line 30, leave out and insert

Robert Brown 86 In section 12, page 7, line 30, leave out from <, and> to end of line 32

Robert Brown 87 In section 12, page 7, line 33, leave out and insert

Des McNulty 130 In section 12, page 7, line 35, at end insert— <(4) Nothing in this Act prevents a report under this section from being combined with an annual report of the Scottish Public Services Ombudsman. (5) In any combined annual report under subsection (4) of the Scottish Public Services Ombudsman and Scottish Commissioner for Human Rights the accounts will be separate for each body.>

Section 13

Robert Brown 88 In section 13, page 7, line 37, leave out and insert

Robert Brown 89 In section 13, page 7, line 39, leave out and insert

Robert Brown 90 In section 13, page 7, line 39, leave out and insert

17 †492 Section 14

Robert Brown 91 In section 14, page 8, line 3, leave out and insert

Robert Brown 92 In section 14, page 8, line 3, leave out and insert

Robert Brown 93 In section 14, page 8, line 9, leave out and insert

Robert Brown 94 In section 14, page 8, line 10, leave out and insert

Robert Brown 95 Move section 14 to after section 4

After section 14

Robin Harper 119 After section 14, insert—

Section 15

Robert Brown 96 In section 15, page 8, line 14, leave out and insert

Robert Brown 97 In section 15, page 8, line 19, leave out and insert

Robert Brown 98 In section 15, page 8, line 21, leave out and insert

18 †493 Section 18

Robert Brown 99 In section 18, page 9, leave out lines 25 and 26 and insert— <“the Commission” means the Scottish Commission for Human Rights (established by section (Scottish Commission for Human Rights)(1)),>

Robert Brown 100 In section 18, page 9, leave out lines 29 and 30

Section 19

Robert Brown 101 In section 19, page 10, line 2, leave out and insert

Long Title

Robert Brown 102 In the long title, page 1, line 1, leave out and insert

Robert Brown 103 In the long title, page 1, line 2, leave out and insert

19 †494 Scottish Commissioner for Human Rights Bill

1st Groupings of Amendments for Stage 2

This document provides procedural information which will assist in preparing for and following proceedings on the above Bill. The information provided is as follows: x the list of groupings (that is, the order in which amendments will be debated). Any procedural points relevant to each group are noted.

Groupings of amendments

Appointment of a Commissioner/establishment of a Commission 120, 121, 1, 122, 123, 124, 125, 126, 127, 128, 129, 2, 3, 4, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 65, 66, 68, 69, 70, 71, 72, 73, 75, 77, 79, 80, 81, 82, 84, 85, 87, 130, 88, 89, 90, 91, 92, 93, 94, 96, 97, 98, 99, 100, 101, 102, 103

Notes on amendments in this group Amendments 31, 32, 33 and 34 in this group are pre-empted by amendment 106, and amendment 36 is pre-empted by amendment 108, in the group “Power to conduct inquiries etc.”.

General duty to promote human rights 5, 104, 6, 7, 7A, 11

Notes on amendments in this group Amendment 5 pre-empts amendment 104 in this group.

Specific duties and powers 12, 20, 20A, 21, 21A, 83, 86, 95

Power to conduct inquiries etc. 105, 106, 107, 108, 109, 110

Notes on amendments in this group Amendment 106 in this group pre-empts amendments 31, 32, 33 and 34 in the group “Appointment of a Commissioner/establishment of a Commission”, and amendment 108 in this group pre-empts amendment 36, also in that group.

SP Bill 48-G1 1 Session 2 (2006) †495 Legal aid: disclosure of information 39

Places of detention: requirement to give notice and evidence of authority 47, 48, 49, 50

Institution of and intervention in legal proceedings 64, 111, 112, 112A, 67, 74, 76, 78, 113, 114, 115, 116, 117, 118

Power to make grants 119

†496 JUSTICE 1 COMMITTEE

EXTRACT FROM THE MINUTES

31st Meeting, 2006 (Session 2)

Wednesday 20 September 2006

Present:

Karen Gillon (Committee substitute) Marlyn Glen Margaret Mitchell Bruce McFee Pauline McNeill (Convener) Mike Pringle

Apologies were received from Stewart Stevenson and Mary Mulligan.

Scottish Commissioner for Human Rights Bill: The Committee considered the Bill at Stage 2 (Day 1).

The following amendments were disagreed to (by division)—

120 (For 2, Against 3, Abstentions 1) 1 (For 3, Against 3, Abstentions 0; amendment disagreed to on casting vote)

Amendment 121 was not moved.

The Committee ended consideration of the Bill for the day, amendment 1 having been disposed of.

†497 3751 20 SEPTEMBER 2006 3752

Scottish Parliament Scottish Commissioner for Human Rights Bill: Stage 2 Justice 1 Committee

Wednesday 20 September 2006 09:59 The Convener: Agenda item 2 is consideration [THE CONVENER opened the meeting at 09:58] of the Scottish Commissioner for Human Rights Bill at stage 2. I welcome the Deputy Minister for Education and Young People, Robert Brown, who is leading on the bill, and his team of officials— Jane McLeod, Matthew Lynch, Brian Peddie and Ed Thomson—who will support him. I remind members that pre-emptions are noted on the groupings paper.

Section 1—Scottish Commissioner for Human Rights The Convener: Amendment 120, in the name of Des McNulty, is grouped with amendments 121, 1, 122 to 129, 2 to 4, 8 to 10, 13 to 19, 22 to 38, 40 to 46, 51 to 63, 65, 66, 68 to 73, 75, 77, 79 to 82, 84, 85, 87, 130, 88 to 94, and 96 to 103. Members will note that the group, which includes a number of amendments that have been lodged by Des McNulty, is rather large. I will allow some latitude in the discussion to ensure that Des McNulty’s amendments, as well as the Executive’s amendments, are discussed fully. In a sense, I am suggesting that two miniature debates are involved, but we will stick with the procedure. Des McNulty (Clydebank and Milngavie) (Lab): I am delighted to be at the Justice 1 Committee again—I seem to be becoming an ancillary member of it. In discussing the amendments in the group, it will be necessary for me to comment on those that the Executive has lodged because I must persuade the committee that my proposals are superior to its amendments as well as to the proposals in the bill as it stands. That is what I will seek to do. My concern is that if the Executive’s amendments are agreed to, the people of Scotland will have not one commission for human rights, but two commissions for human rights. We are about to have the commission for equality and human rights, which will gather up existing equalities organisations and introduce a human rights remit that will encompass all four strands of the human rights remit that were identified by Rosslyn Noonan, who gave evidence to the committee. She talked about advocacy, harmony and diversity, discrimination and equal opportunities as the four main strands of its work. The number of staff who are employed by the existing bodies is expected to increase from 56 to 70. A significant number of those additional staff

†498 3753 20 SEPTEMBER 2006 3754 will be employed in the field of human rights and I believe that there is an opportunity to do some will have responsibilities that will, I think, overlap advocacy work and I would accept the argument with the responsibilities of the Scottish Executive’s that we should find an appropriate mechanism to proposed commissioner. Meanwhile, the Scottish do that and that, perhaps, we should do that Executive has proposed to appoint five new through the establishment of a commission that members of a commission—some of whom may would guarantee the independence of that be part time—and additional support staff and to advocacy and advice. I question the idea that we pay for premises to tackle just one of the four need a separate body, costing at least £1 million a aspects. There is a fundamental question about year, to take that forward. More than three overload, value for money and the clarity of what quarters of that £1 million will be spent on staffing we are trying to do. and overheads and less than a quarter will be spent on functional activity. That is the nature of I draw members’ attention to the design such bodies and the cost of establishing a principles that were detailed by the Scottish public separate body. services ombudsman in supplementary evidence to the Finance Committee. She said that such Some clear issues have been identified by the principles should feature in any proposal for an Scottish public services ombudsman, amongst additional body or office-holder. They were: others, about the overlap of the proposed body’s “1. Clarity of Remit: a clear understanding of the office- remit with hers. She feels that she has a human holder’s specific remit rights element within her work, as things stand. My proposal is not that the ombudsman should halve 2. Distinction between functions: a clear distinction her time between human rights work and the between different functions, roles and responsibilities including audit, inspection, regulation, complaint handling, ombudsman responsibilities; I suggest that advocacy housing the human rights advocacy function in the office of the ombudsman and making the 3. Complementarity: a dovetailing of jurisdictions creating a coherent system with appropriate linkages with no gaps, ombudsman responsible for the human rights overlaps or duplication element and the ombudsman element would be a cost-effective way of taking forward the objectives 4. Simplicity and Accessibility: simplicity and access for of the bill and dealing with the gap that is there to the public to maximise the ‘single gateway’/‘one-stop-shop’ approach be filled. 5. Shared Services: shared services and organisational The bill does not require the new commissioner efficiencies built in from the outset to share services or to make any use of the 6. Accountability: the establishment of clear, simple, resources that are already available to the SPSO, robust and transparent lines of accountability appropriate to nor does it deal explicitly with the potential for the nature of the office”. remit overlaps between the proposed body and the existing ombudsman. It is not just an issue of None of those design principles, which should be cost; there is an issue of confusion attached to the applied to any new proposal in any context, proposal. The basic requirement is that Parliament applies to the linking of the proposals in question should be absolutely clear about what it is trying to with the responsibilities and remits of the other do and that we should legislate appropriately. relevant bodies—the commission for equality and However, I think that there are too many human rights, which is the United Kingdom body unresolved issues involved in what is suggested. that is being set up, and, in particular, the Scottish To some extent, I think that that was recognised in public services ombudsman. the committee’s decision not to endorse the My fundamental question is, do we need a general principles of the bill at stage 1. separate body to be created to meet the Some of the changes that have been made are requirements that have been identified? From the welcome, particularly the decision not to appoint a evidence that it has seen, the committee has chief executive. However, the fundamental issues, identified the fact that there is a small gap to be which are about shared services, clarity of remit, plugged. I want to ask about appropriateness and the overarching costs and whether they are the scale of the cost that is being applied. I have proportionate to the need, have not been made reference to the 14 additional members of addressed. staff that are being appointed by the United Kingdom body. There are five human rights The better course of action for the Parliament specialist posts, plus support staff posts. How would be to make the responsibility of the many human rights people do we need in commissioner for human rights a shared Scotland, given that the legislation that we pass is responsibility with the ombudsman. If that does not human rights proofed? In particular, how much work, the position can be changed in two or three advocacy activity is the public to be expected to years’ time. If we set up an alternative body with pay for and on what basis? substantial additional costs that will last for an established time period—as a result of public

†499 3755 20 SEPTEMBER 2006 3756

appointment procedures, people will be in place The committee’s scrutiny of the bill and the for five years—Parliament will restrict its capacity stage 1 debate centred on the governance and to put in place an appropriate, fit-for-purpose accountability of the human rights commissioner, arrangement. but we all accept that there is an undercurrent of issues about the structure and relationship of all The opportunities for providing rationalisation the commissioners; most of that does not relate have not been appropriately explored. Perhaps the specifically to the human rights commissioner. The proposal should not have been brought forward at Scottish Executive has responded to the issues this point, when there are many issues of that were raised by the committee and proposes to uncertainty with regard to the equality and human make significant changes to the proposed rights issue. That aside, I think that my architecture and governance arrangements. Those amendment 120 and the associated amendments changes meet the key concerns in full measure. will provide us with an adequate holding position that will allow us to deal appropriately with the The commission format, operating within the human rights advocacy requirement. We will be strategic plan that was asked for by the able to do so in a cost-effective and proportionate committee, represents a substantial improvement way. There are very strong arguments for to the bill and demonstrates the value of the accepting the Scottish public services committee’s consideration of the matter and the ombudsman’s view that she could do that work committee system. That is the general point, to and that her office would be the appropriate place which I will return in more detail when we reach for that work to be done. that part of the debate. I move amendment 120. Des McNulty’s amendments, which seek in effect to subsume the Scottish human rights The Deputy Minister for Education and commission within the structure of the Scottish Young People (Robert Brown): Because of the public services ombudsman office, seem to be summer recess, it seems a while since we based on several fallacies. They prejudge a series discussed the issue. I am grateful to the convener of wider debates that the Parliament might want to for facilitating clearer debate on the nub of the have on the subject about appropriate issues than might have been allowed for by the relationships between a human rights commission accident of the way in which the amendments fell. and the other Scottish commissioners; about the For the avoidance of doubt, will I be allowed back crucial relationship with the Great Britain in to speak on the substance of the commission? commission; and, above all, about the centrality of The Convener: I need you to speak to your human rights concepts to the debate, which Des amendment 1 and the other amendments in the McNulty underplays. group. When you have done that, I suggest that We always envisaged that a human rights we focus first on the public services ombudsman commission and the Scottish public services so that we can deal with any questions to Des ombudsman would need to work closely together, McNulty. We can then focus any further debate on but that there would also be close relationships your amendments. with the other commissions. From the beginning, Robert Brown: So will I be allowed a second we have supported value-for-money arrangements speech on the commission? for back-office functions, co-location with other commissions and other similar matters to which I The Convener: Yes. I am totally flexible. will return. Robert Brown: It would be useful to consider First, I will deal with Des McNulty’s point about the Scottish public services ombudsman the two human rights bodies. The commission for separately from the debate about the architecture equality and human rights that he described is a of the commission. GB body, which will deal with reserved functions; it Nevertheless, I will set the initial debate in the will have little, if any, status with regard to context of the background to the proposal on the devolved matters in Scotland. The commission human rights commission and the stage 1 report was deliberately set up in that fashion against the and debate. The need for a separate body was background of knowledge of the proposal for the approved by Parliament when it approved the Scottish human rights commission. It is perfectly general principles of the bill. That is the context in true that that could have been done differently. At which we now operate. the time, there was an argument for a United Kingdom or GB body that would have a role in The proposal for a human rights commission Scottish devolved issues. The majority of the has been through a fairly long process. It has been views that were gathered in the consultations went the subject of two consultation exercises about the against that approach, which is why we are principle and the powers, leading to the proceeding with the Scottish human rights commitment to the current bill in the partnership commission as a body to deal with Scottish agreement of 2003. †500 3757 20 SEPTEMBER 2006 3758 devolved issues. It would have been possible to some application of human rights standards—she do it the other way, but that is not the way we are gave evidence to that effect—she does not claim directing. To have no Scottish body at all—as to have, nor does she have, specific expertise in implied by amendment 120—would lead to human human rights. That is not her role. It is not rights being promoted to a lesser degree in intended that she should have that speciality, but Scotland than would be the case in England, such expertise is quite clearly involved in the role Wales and Northern Ireland. That is very much the of the proposed commission for human rights. view of the GB body and its sponsors; it has left a Similar issues arise in respect of the deputy public Scottish-sized hole for the Scottish human rights services ombudsman. In any event, it has been commission. decided that the present deputy ombudsman should be reappointed for only one year, after which the role will be filled by SPSO staff. 10:15 Therefore, there will be no deputy ombudsmen I respect Des McNulty’s long-held view on the who could be appointed as deputy commissioners matter, but I do not agree with him in respect of a for human rights in the event that the bill was to number of detailed reasons and issues of continue to provide for a commissioner, rather principle, on which I would like the committee to than commission, for human rights. pause for thought. First, the phraseology of Des McNulty’s amendments does not reflect or sit well Some of those problems—albeit not the problem with the revised architecture of the human rights of the ombudsman’s expertise—could ultimately commission that I promised the committee and be resolved. However, a more fundamental Parliament at stage 1 and which the Executive problem is that, our view remains, only the amendments will implement. I am in no doubt that creation of a separate human rights body can the committee and the Parliament very much effectively fill the significant gap that will exist. In preferred the commission model to the that context, it is worth noting that last week’s commissioner one that Des McNulty’s report from Amnesty International, which amendments seek to perpetuate. concluded that many Scottish public authorities suffer from a lack of focus on human rights issues, Another fundamental problem with Des called for more to be done to secure awareness McNulty’s amendments is the idea that the and compliance. In evidence at stage 1, the public Scottish public services ombudsman, who already services ombudsman welcomed the bill and has a full-time and demanding position, should expressed her preference for the creation of a take on responsibility for the commission for freestanding human rights body rather than the human rights, which may well be similarly alternative of expanding her remit. In doing so, she demanding. It seems contradictory to require the noted the substantial differences between her role, SPSO to take on the significant extra which is reactive and focuses on individual responsibilities that are envisaged for the complaints, and the proactive role of the proposed commission for human rights while expecting her commission that will aim at more general issues. to continue to exercise her ombudsman duties on We need two different bodies for those two a full-time basis. There are only so many hours in different roles. To say otherwise is a bit like saying the day. That aspect, which has not been explored that the specialist roles of orthopaedic surgeon thoroughly, would be fundamental and central to and gynaecologist are interchangeable; they are the way in which the commission would develop. not. It is not like that. In addition, it is inconsistent with the principle of On amendments 122 and 124, we agree that the establishing a new post to stipulate that the post scope for the SCHR to share services, including can be filled only by the holder of some other post. premises and staff, should be fully explored so as That proposal is certainly most unusual and must to secure best value for money. To facilitate that, be, I suggest, on the edge of what is competent. In we have taken significant practical steps such as accordance with the principles governing public engaging in discussion with the ombudsman and appointments to which the Parliament has her staff, the Scottish Parliamentary Corporate committed itself—which aim to ensure accessibility Body and the UK Government team that has to all public appointments and to encourage as responsibility for establishing the forthcoming GB wide and diverse a range of applicants as commission for equality and human rights. All of possible—the best person for the job should be that reflects the Executive’s approach to public appointed. Appointments should be based on bodies generally. merit in each case. We welcome both the increased attention that A connected issue is the qualifications that will such matters have received during consideration be required for the post. Des McNulty’s of the bill and the wider review of accountability amendments make some rather extensive and governance of commissioners and assumptions about the role of the Scottish public ombudsmen that the Finance Committee, under services ombudsman. Although her work involves Des McNulty’s chairmanship, has recently

†501 3759 20 SEPTEMBER 2006 3760

undertaken. However, it would be wrong for the bill appropriate, to draw those problems to the to dictate a particular solution for those issues in attention of higher authorities such as the Auditor the case of the SCHR. First, such a move would General for Scotland. Giving that role to the pre-empt consideration of other options that might commissioner would remove an important control in practice be more financially effective and would on the use of SCHR resources. therefore prejudice our ability to achieve best Finally, I will comment on the broader issues. I value for money. In particular, that might be an have no doubt that there is a wider debate to be issue because of the narrow straitjacket that Des had in due course, probably during the next McNulty proposes, whereby members of the session of Parliament, on the governance SCHR could be drawn only from SPSO staff. That arrangements for both the commissioners and proposal seems to take no account of required more executive-orientated bodies. As has been qualifications for the role or, indeed, any of the mentioned, a number of reviews in that connection operational requirements of the job of Scottish are on-going. Those reviews may conclude that an commissioner for human rights. amalgamation of functions has merit, although I am sorry to take some time over the issue, but Des McNulty’s promotion of the ombudsman’s role it is important. A number of operational factors is not the only game in town. Equally, they may also need to be considered, especially the need conclude that there is merit in smaller bodies for the SCHR to work closely with the GB performing discrete functions and that commission for equality and human rights. That amalgamation does not necessarily produce has led many stakeholders to call for the two financial savings. That debate should not be bodies to be located in the GB commission’s resolved as a side issue during consideration of Scottish office, which is to be set up in Glasgow. In the bill, as there has not been an opportunity to its stage 1 report, the Justice 1 Committee test or argue for the centrality of human rights as a recommended that the corporate body give tool of analysis and a weapon for better detailed consideration to the practical benefits to government through experience of the role of the be realised from the co-location of the Scottish office of the Scottish commissioner for human commissioner for human rights with either the rights. It is no accident that the case for a self- ombudsman or the GB commission. We have standing human rights commission has been worked with the corporate body to help to achieve strongly supported in a public letter in newspapers that and believe that the process should continue, today—not just by the usual variety of human to enable all the relevant factors to be considered rights and equalities bodies, but by groups as and options to be explored before a final decision diverse as ChildLine Scotland, Help the Aged, is taken. This is a minor point, but in evidence to Scottish Women’s Aid and the Church of the Finance Committee the ombudsman said that Scotland’s church and society council. she did not consider that shared services were Des McNulty made a number of points about necessarily dependent on co-location, because design principles, but I do not want to go into that with the on-going development of web-based issue in depth. I know that those points echo the systems, to which she has made a considerable Finance Committee’s report and I do not disagree contribution, shared services can be managed terribly strongly with them. However, I disagree efficiently and supplied across different locations. very strongly with Des McNulty’s suggestion that It is for the corporate body to take on board the the Scottish commissioner for human rights does options that exist. not meet the requirements. There is clarity of Amendments 123, 125 and 126 relate to the remit, which has been enhanced by the bill’s requirement that the Scottish commissioner committee’s work. There is distinction between for human rights have a chief executive. The functions—considerably more than between the amendments are unnecessary, because what they functions of the ombudsman and those of a seek will be achieved by the new schedule 1 that number of other bodies. There is distinct will be inserted by Executive amendment 2, to complementarity, especially with regard to the GB which we will come later. commission. The issue of possible co-location with the GB commission and the ombudsman is We have significant reservations about Des important, and the bill makes specific provision for McNulty’s proposal in amendments 127 to 129 that. The option of the ombudsman having an that the commissioner should be the SCHR’s outreach presence in Glasgow in the office of the accountable officer. The accountable officer’s role GB commission is still open for consideration by is essentially to be the conscience of the the corporate body. organisation with respect to financial matters. It is important that the person who fills that role should This is a small point, but the bill provides for have a clear responsibility, distinct from his or her appointments for up to five years, not necessarily normal line management accountability, to for five years. It is for the corporate body to highlight any major problems, such as a significant decide, with some limitations, what the length of breach of financial propriety, and, where appointment might be.

†502 3761 20 SEPTEMBER 2006 3762

I am sorry to have gone on at some length, but did not say that her workload would preclude that, complex issues are involved. The central point that because her office could staff up to deal with the I ask the committee to bear in mind is that there is role. In the circumstances, that would be the best a considerable difference between specialising in way forward. human rights law and practice, which is what the Convener, you will have gathered that I am more human rights commission will be about, and the than happy to back Des McNulty’s amendments. I role of ombudsmen. hope that common sense will prevail in the I hope that Des McNulty will take comfort from committee so that we totally reject the minister’s some of those observations and that he will proposals. withdraw amendment 120 and not move his other The Convener: I imagine that members have amendments, on the basis that the accountability questions for Des McNulty and the minister about and governance framework that the Executive their amendments. Since Des McNulty moved the proposes, together with the potential of the lead amendment, questions about his proposals practical steps that I mentioned and the continuing should be asked first, so that he can answer them. liaison with the corporate body, will meet the Questions about the minister’s proposals can substantive concerns that have been expressed follow, after which Des McNulty will wind up. about the human rights commission proposals. Margaret Mitchell (Central Scotland) (Con): I regarded the bill as fairly horrendous to start with 10:30 and I am appalled that the Executive has Marlyn Glen (North East Scotland) (Lab): I will managed to propose to make it much worse. start from the same place as the minister did and Value for money does not feature at all. The remind the committee where we are. Parliament promotion of human rights and what would be in agreed to the bill’s general principles and we are the best interests of people with a human rights considering the detail of the bill at stage 2. It was issue have not been considered. helpful that the minister outlined the lengthy history of how we got here, because part of the From the beginning of consideration of the bill, I problem is the long time that the process has have taken the same approach as Des McNulty taken, which has been unhelpful. In that time, the has, which is that we do not need a commissioner UK legislation has been passed, while we are not and we certainly do not need a commission. We ready to pass our bill. were catapulted into having the bill because of the Equality Act 2006 in England, which does not have I reiterate that the UK legislation was designed a plethora of commissioners and which needed to to leave a gap. The Scottish Commissioner for establish a commission to address human rights Human Rights Bill is not a blind, knee-jerk issues. We in Scotland are in an entirely different reaction. We have not been forced into legislating. situation, so the idea that not having a commission We asked for the UK legislation to be set out in a or a commissioner to promote human rights issues particular way so that we could consider devolved would mean less promotion is nonsense. issues that involve human rights here in Scotland. It is extremely difficult to oppose that in the Value for money is nowhere to be seen in the Scottish Parliament and to say that we do not want Executive’s proposals. The commission is to have any control over such matters. Although I five members. We do not know its cost, but it does recognise that that is not what Des McNulty is not sound as though £1 million will be anywhere proposing, I think that human rights are important near enough. We will have staff, salaries, enough to have a separate body to deal with them. pensions, allowances and additional premises requirements. On top of that, the Executive has To underline the need for the promotion of missed the opportunity to fund and engage with human rights, I refer Des McNulty and the the voluntary sector—charities such as Shelter committee to the Amnesty International report that and those that deal with old-age pensioners. That the minister mentioned. Entitled “Delivering sector has the expertise and experience to take up Human Rights in Scotland”, it deals with the individual cases, which the bill would not allow a performance of Scottish public authorities in that commission or a commissioner to do. That is an field and reveals that although the gap that we are opportunity lost. trying to plug might be small in legislative terms, from the point of view of Scotland’s public I agree entirely that the Executive’s authorities’ understanding of what action on amendments are disproportionate to the problem human rights they are expected to deliver, the gap and that there is a small gap to fill on awareness is immense and worrying. That underlines the bill’s and promotion. The Scottish public services necessity. ombudsman would happily fit that role. When she gave evidence to the committee, she said that her I will now consider the detail of the proposals, remit could be extended. She might not think that which is what we should be doing at stage 2. The that is the best way forward—who knows—but she amendments in the name of Des McNulty seek to †503 3763 20 SEPTEMBER 2006 3764

push the human rights function into the office of proposals will do to reduce the amount of overlap the Scottish public services ombudsman, but and to increase the distinction between the adding on functions to an existing remit is different roles. I would certainly like to hear Mr extremely bad practice. We explored the idea at McNulty’s view on that. stage 1 and asked Alice Brown about it. We had a I am not sure exactly what point the minister is big discussion about putting the two services making about qualifications. Is he suggesting that together, but the fact remains that it would not be Mr McNulty’s proposals do not specify what a good fit to combine the human rights role with qualifications should be required of an officer in that of the ombudsman, whose function is to the public services ombudsman’s office? Where is investigate complaints about the administration of that kind of detail spelled out in the minister’s public services. It would be difficult for people in proposals? Normally, such detail would appear in the same office to cope with that tension. regulations. Is Mr McNulty’s proposal deficient The Finance Committee’s report on its inquiry because it does not lay out the mechanics of the into accountability and governance did not required qualifications? consider the co-location of the SCHR with the I would also like the minister to elaborate on his Scotland office of the commission for equality and statement that there is probably a greater human rights, whereas at stage 1 we examined distinction between functions in this case than various options for co-location. Co-location is there is between the functions of the Scottish definitely a live issue, but I feel that what Des public services ombudsman and those of the other McNulty has proposed is certainly not the answer. ombudsmen, which might be more likely to I appreciate the continued assurances that there overlap. Can the minister give examples of what will be an overall review of commissioners. Such a he means? review would be a better way of meeting the Karen Gillon (Clydesdale) (Lab): I apologise if Finance Committee’s concerns on cost and I ask questions that might be elementary, but I efficiency and would be the right vehicle for have come to consideration of the bill somewhat clarifying the remits and working practices of late, unlike many round the table. commissioners throughout Scotland. Commissioners and ombudsmen have been set The starting point for me is what we believe the up in a piecemeal fashion and we need to draw Parliament agreed to at stage 1. My understanding back and assess the situation properly, but stage is that the Parliament agreed to have a body to 2 of the Scottish Commissioner for Human Rights promote human rights in Scotland but did not Bill is not the time to do that, so I will not be agree what that body should be. That is why I supporting the amendments in the name of Des voted at stage 1 as I did. Stages 2 and 3 are about McNulty. the Parliament deciding what the body should be and how it should function. Brian Adam (Aberdeen North) (SNP): I want to find out from Robert Brown and Des McNulty what I probably also start from the point that I do not impact their proposals are likely to have on the share the view of many round the table that the pool of human rights specialists in Scotland, which GB commissioner could not have carried out their I understand is limited. A number of people in the functions here in Scotland. Yesterday, Scotland’s voluntary sector provide such services, but the commissioner for children and young people number of legal specialists in this area is commented on issues that are within the extremely small. The point that the minister made competence of the United Kingdom Parliament. In about human rights being a specialised area might my view, there is no reason why the Scottish be important, but if we suck all the expertise into division of the GB commissioner could not have the commission and the commission spends three been allowed to comment on issues that are within quarters of its money on administration rather than the devolved competency of the Scottish on the delivery of services, what services will be Parliament. However, we are where we are. available? As a representative of the north-east of Scotland, I am well aware that my constituents I am probably drawn to what Des McNulty have virtually no access to advice on European proposes, but I want to ask him a couple of convention on human rights issues, which the questions. I am not sure whether I can support his commission will be expected to deal with. I seek a amendments as they are, particularly those about response on that. the issue of staffing numbers for the commission within the public services ombudsman’s office. My Robert Brown and Des McNulty have constituency work has made me aware that the approached the amount of overlap that will exist office of the public services ombudsman—just one between the commission and the Scottish public of the different names that we give to such services ombudsman from different angles. The bodies—is under considerable pressure from the minister acknowledged that, as things stand, there current workload placed on it. I would probably be will be some overlap, but I want to know what his more sympathetic to Des McNulty’s position if he

†504 3765 20 SEPTEMBER 2006 3766 proposed an additional staffing resource for the can be encompassed by another element of our ombudsman’s office to help it to carry out the system of tsars? proposed additional functions. I do not find either of the two arguments On the issue of premises, I know that the especially convincing. If I have to choose between general public around Scotland are concerned them—and I suspect that I will have to do so very about the availability of ombudsmen outside shortly—I will have to choose amendment 120, if Edinburgh. How would that concern be addressed only to make the Executive rethink the issue more if what amendment 120 proposes went ahead? clearly. The Executive will have to resolve the piecemeal way in which the organisations have On the role of the Scottish public services been set up. I have no great enthusiasm for Mr ombudsman, how could we satisfactorily ensure McNulty’s proposal, but the Executive’s proposal that the ombudsman—or whatever they are called is even worse. in the future—would be able to dedicate enough time to their two responsibilities, or to the Mr John Swinney (North Tayside) (SNP): I additional responsibility, if we were to proceed in thank the committee, of which I am not a member, the way that is proposed? I would accept, though, for making me welcome. I am here to make a that the additional responsibility is probably number of points on behalf of the Finance marginal. Committee. Now is probably the opportune time to raise these points with the minister, although I Mr Bruce McFee (West of Scotland) (SNP): might raise them again after the minister has Frankly, I think that the bill and the amendments made further comments. are a bit of a mess. I think that they were born from two compromises. The first compromise is The Finance Committee is concerned about the that made between the Scottish Parliament and Executive lodging a substantial number of Westminster. We do not have full control of all our amendments that will fundamentally recast the affairs, so we have created an artificial split under character of the bill and will have implications for the heading of human rights, when in fact human the financial memorandum that the Finance rights should go right through everything that we Committee has already considered. We were do. The second compromise is that made between originally asked to consider a Scottish the Liberal and Labour parties when forming their Commissioner for Human Rights Bill, but as a coalition agreement. result of the more than 100 amendments that the minister lodged about 10 days ago, we are now Out of those two compromises has come, being asked to consider establishing a Scottish eventually, a proposal for one commissioner. This commission for human rights. committee did not back that proposal. We could not back the general principle and we were Having looked through the very detailed concerned about overlap and cost. So what provisions in the amendments—for example, there happens? The minister comes back and replaces is an entirely new schedule 1—the Finance the one commissioner with a commission that has Committee has asked me to relay its concerns and a chair and possibly four other members. I wonder to ask the minister about the implications of the where we are going. change in the configuration of the bill on the financial memorandum that we have already I did not serve as an MSP in the first session of scrutinised and passed an opinion on. the Parliament—and I was not particularly keen to come back for the next one—but it seems strange The Parliament’s standing orders are clear. Rule that the people who created all the tsars now 9.7.8B states: seem to be railing against the fact that they did not “If a Bill is amended at Stage 2 so as to substantially alter set up any controls on their finances. The tsars any of the costs set out in the Financial Memorandum that were set up in a piecemeal fashion. accompanied the Bill on introduction, the member in charge shall lodge with the Clerk, not later than the fourth sitting For the moment, we have to consider the day before the day on which Stage 3 is due to start, a principle rather than the detail. We are trying to revised or supplementary Financial Memorandum.” deal with an area relating to devolved matters that the Executive originally wanted to relate only to I would like the minister to tell us whether it is the promotion of human rights—that was my intended that such a financial memorandum will be understanding of the bill as introduced. So how laid before Parliament in respect of the best can that be done? I appreciate that the amendments that he has lodged. amendments in the name of Des McNulty might The Justice 1 Committee will come to a not be in the fullest of detail—that is probably why judgment on the amendments in the name of Des we have a stage 3 in the bill process—but we are McNulty and on those in the name of the minister. being asked to decide on a point of principle. Do The committee should be given some sense from we set up a new organisation, with a chair and up the minister—who is the member in charge of the to four members, or do we say that what we want

†505 3767 20 SEPTEMBER 2006 3768

bill—of the implications of his proposals on the commitment to have a commission to the proposal financial memorandum. to have a commissioner. We did not understand how we had got to that point. 10:45 Separately from that, the committee discussed I could make a number of specific points about the structural issues and how the human rights things that will have an impact on the financial function would be exercised, but we came to no memorandum. For one, we have gone from having conclusions about that, not only because we were one commissioner to having five members of a torn between the options but because we commission, but there is no direct, specific identified that there was only a small gap to be provision in the schedule for the remuneration of filled. We were concerned about duplication and those members. There are also pension and about the number of commissions and other allowances implications. The minister said that he bodies that have human rights functions. In the has decided that there should be no chief debate, I and other members argued that, just executive, but subparagraph 11(1) of the new because there is a GB commission and a gap is schedule 1 that is inserted by amendment 2, left, that is not a reason to try to fill it. I argued in states: favour of the devolution settlement and that has always been my constitutional position. We are not “The Commission may, with the approval of the in the same position as England and Wales, so we Parliamentary corporation as to numbers, appoint staff.” have to try to shape something that suits our It does not say that the commission cannot settlement. appoint a chief executive. The only thing that the The Parliament has a strong human rights parliamentary corporation can do under the function. The committee wrestles with human schedule is to state how many staff the rights issues in relation to every bill that it commission may have. considers, although it has been argued that If I understand the process correctly, we will access to specialist human rights knowledge move on to a general debate about the issues would be helpful in the committee process. later, but one of the Finance Committee’s The bill deals with the promotional role aspect of concerns is that there has been a proliferation of the human rights function. However the function is such bodies and that, at some stage, the exercised, whether through the public services Parliament will have to exercise its responsibility to ombudsman or through a commission, having a judge whether we have got things right and what strategic plan is vital. As a parliamentarian, I want the money is delivering. to know where Parliament’s resources are going to I turn to the point that Marlyn Glen and Bruce be spent. I believe in accountability as well as in McFee made. In the Finance Committee’s report some measure of independence for whoever is on accountability and governance, which was exercising that human rights function. However, it published on 15 September, we told the is not unreasonable that Parliament should be Government that there should be a moratorium on presented with a rough plan of where the human expansion of the number of bodies until we rights body or commissioner would want to go. resolve the issue. The issues that I raise with the I would like to know how Des McNulty envisages committee today are ones that were raised by the the ombudsman exercising that function. I know Finance Committee. I would appreciate an answer that he is suggesting that the existing staff should from the minister on the financial memorandum be used, but how would that be done? Would they and the likely financial implications of his proposal. need a different type of training? Would they be We are concerned that the amendments that the ring fenced within the function of the ombudsman? Government lodged fundamentally recast the What powers should the ombudsman have? My financial implications. We believe that the Justice feeling, at the moment, is that we should stick with 1 Committee is entitled to hear the detail before it the promotional role, although I know that we are makes a decision on the principle, which will then going to debate whether there should be other go back to the Parliament. powers. Des McNulty talked about advocacy, and The Convener: To be clear, it is important to go it would be helpful if he could say how the human back to the Justice 1 Committee’s report. We rights function exercised through his model would considered at least three options—the lack of operate. consensus led to that. It is important to mention The committee examined the public services that we did not endorse the general principles, ombudsman’s current role in taking complaints although the Parliament did. The minister said from members of the public, but the Scottish something about the committee preferring the Commissioner for Human Rights Bill envisages a commission model, but I want to be clear about different function, because there is no plan for that. In our report, we said that we did not people to take individual complaints to the understand the logic of moving from the original commissioner. I am not sure whether Des McNulty †506 3769 20 SEPTEMBER 2006 3770 is suggesting that he would even out that function. Parliament has made the right decision and that If not, could he make it clear to the committee that whatever model is chosen fits neatly with other there would be a distinction between the two bodies that have human rights functions. roles? If a member of the public came to the At this point, I will let Des McNulty address some ombudsman to talk about a complaint that was not of the questions that were put to him. necessarily human rights based, that would be okay, but if they were coming to the human rights Des McNulty: I associate myself with the department they would not, under the terms of the comments that John Swinney relayed on behalf of bill as drafted, be able to pursue a complaint. the Finance Committee. The one point that I would Does Des McNulty believe that that should like to add is that the Finance Committee did not change, or is he simply talking about the role that call for a moratorium only in its most recent report; is envisaged in the bill, which is the promotion of it did so some months ago. human rights? To some extent, the fact that we are having this On the number of members of staff, I think that I debate and the way in which it has gone underline am right in saying that the set-up would be a the arguments for a moratorium and for not commissioner and two deputies under the bill as rushing into establishing the post. If issues are introduced and a chair and up to four members of coming up to do with duplication, if there is a lack a commission under the Executive amendments. I of consensus on the Justice 1 Committee and if have some questions to ask the minister about there is uncertainty about the budgetary who those people are. The amendment does not arrangements, it is questionable whether we are in say that they are commissioners; it refers to up to a position to put in place good legislation. As a four part-time members. I want to be clear about parliamentarian, I believe that we should be who appoints them. putting in place only good legislation. I take Karen Gillon’s point that Parliament has approved the I seek a guarantee with regard to the role of Her proposal that there should be a body to take Majesty’s chief inspector of prisons in Scotland, forward human rights issues in Scotland, but the which is extremely important. I applaud what question is what the best method of doing that is. Andrew McLellan has done to highlight human How can we minimise the tensions, contradictions rights issues and other rights issues—we can and overlaps that have been pointed out? argue about whether they are human rights issues—in and around that field. In England and My view is that the best interim step would be to Wales, the role of the inspector of prisons has link the role with the Scottish public services been almost demoted and I want a guarantee that ombudsman. The best single argument in favour that will not happen in Scotland. of that is probably the report that Marlyn Glen mentioned. If there is a lack of understanding of The committee came to the view that if the bill is human rights issues in the public services, surely passed, the corporate body should at some future the office of the Scottish public services point address the question whether two of the ombudsman—the body responsible for monitoring bodies, or all three, should be co-located. I would and dealing with issues that arise from individual like the minister to address John Swinney’s complaints about the way in which public services question about cost implications—either savings work throughout Scotland—is the organisation that or additional costs—attached to that. Members of is closest to the situation and can best handle an the committee expressed the view that, whatever advocacy role. There is a symbiosis between the structure is used, they do not want a top-heavy ombudsman’s complaint-handling role and an structure with one person at the top—another chief advocacy role. It would be a separate role, but the executive. That would be a waste of money; I do roles could usefully be combined. not see why a small office, whether it is located with the public services ombudsman or whether it Karen Gillon asked about additional staffing is a commission or another kind of institution, support. Additional staffing support would clearly needs a chief executive. It might need an office be required. There would need to be some manager, but the resources should be used to specialist support, be it one or two human rights exercise the functions of the office, so I clearly do lawyers, or one or two advocacy workers, or more. not want the body to have the power to create a My suspicion is that the work could be achieved top-heavy structure. within the framework of the ombudsman far more cheaply and effectively than it would be by setting We need clarity on the issue. What is the up a new and separate body. function of a human rights person, whether the role is exercised through the ombudsman or On Robert Brown’s comment that back-office through a commission? functions have been taken into account, I do not believe that the Executive has addressed the I am interested in John Swinney’s suggestion issues of back-office support in either its first or its that there should be a moratorium to ensure that before we select a model we are satisfied that the †507 3771 20 SEPTEMBER 2006 3772

second proposal, although I acknowledge that supervisory capacity, with the appropriate staffing some modifications have been made support. On the individual capacity of the ombudsman to Parliament is in a difficult position, because take on the additional role, I accept that Alice many of the issues should have been resolved in Brown is busy and that she has a lot of complaint- principle long before now. I am just a member who handling work to do. I am not insisting that she as is interested in good governance and value for an individual should personally take on all the money saying that there might be a better way. duties of investigating every human rights issue. In The onus is on the Executive to explain why the a sense, she would be a chief executive who is committee finds itself with a lack of consensus and able to combine two roles—sorry, I mean that she, clarity about the best way forward. My proposal in as a commissioner with two roles, would be able amendment 120 is modest, but it would provide to allocate responsibilities to individuals to better governance and value for money than the examine human rights issues. She would be the Executive’s proposal. legal persona that would be accountable, but The Convener: Have you had direct much of the work would be done by others. With discussions with the ombudsman about whether adequate staffing and support, that role could be she would adopt your model? carried out by her far more cheaply than it could by setting up an additional body. Des McNulty: The Scottish public services ombudsman has already responded to that question, and she would give the same answer 11:00 now: it is for Parliament to decide how the Brian Adam referred to access in other parts of responsibility is best dealt with. If Parliament Scotland. I suspect that the worst thing to do in decided that she should be involved, she would trying to create that access would be to set up a enter discussions on how that could work. She is variety of different bodies, because they will all not saying that her doing it is beyond question. inevitably end up in either Glasgow or Edinburgh. If we created an ombudsman and human rights The Convener: I just wondered whether you commissioner grouped together, the had had any other discussions with her. organisational format would provide more scope to Des McNulty: I have spoken to her, and she spread some of the activity to other parts of repeated what she said to you. Scotland. In her response to the committee, the Scottish public services ombudsman, Alice Brown, The Convener: Minister, would you like to come said that many of the investigatory skills in her back at this point? organisation could be used in human rights work. Robert Brown: That would be helpful. I want to One important point that has not come out is the try to disentangle some of the overarching points. confusion for the general public. The more bodies We are talking about a number of different issues with similar titles that we create, the more difficult that have been mixed up. it will be for people to find the one that they need. The first point is that the bill goes far further than There is also the issue of circularity. Under the bill other bills that have set up commissioners in as it is set out, somebody who is not satisfied dealing with issues such as co-location, control by could go to the human rights commissioner or the the corporate body and staffing implications. It ombudsman with the same issue, and the whole goes far further to take those issues on board, process could carry on for ever. while bearing in mind the fact that it will be for the It seems to me that we are creating a potential corporate body to sort out detailed matters, for monster. Brian Adam asked whether there are example the appointment process, once the enough human rights lawyers. I do not know the commission is established. answer, but I will put another question: should we, Coming in from the wing we have Des McNulty’s at the public expense, be finding them all jobs? amendments concerning the Scottish public That is an equally significant question. I presume services ombudsman. His proposal has not been that there would be a shortage at the UK level. consulted on, nor has it been subject to the That gets us back to the issue of the significant Parliament’s procedures. It is substantially gap. If there is a gap, the committee has already different from the proposal that was consulted on, decided that it is relatively small and that the focus which attracted support from interest groups and is on advocacy. How can that best be dealt with? I received approval at stage 1. That is an important would argue that the best way in the present point. If Des McNulty’s proposal were to be circumstances is to use existing organisations, followed, evidence would need to be taken on all identify a distinct role within them, and make the sorts of issues. Bodies would have to be consulted ombudsman legally responsible but in a and their input would have to be requested.

†508 3773 20 SEPTEMBER 2006 3774

The Executive is responding to the issues that issue of resources, availability, accessibility and so were raised by the committee and others at stage on. 1. This is a somewhat lopsided debate, as it is Bruce McFee talked about the commission concentrating on the Scottish public services having more people. We have never suggested ombudsman issue rather than on the Executive’s that it should be a commission of full-time staff. amendments, but the architecture that we have The Executive’s letter on the matter indicated that suggested is a reasonable response. the chair of the commission will probably work full Brian Adam’s point about the spread of resource time, but that the other commissioners will not be around Scotland is an important one, and it arises full time. I think that the overall cost will be less with a lot of Government and other bodies. There than that of the original proposal for three full-time is an issue with Scotland having a relatively limited people. That falls entirely within the scope of the pool of human rights expertise. There are human Scottish Parliamentary Corporate Body, which rights lawyers, including advocates, solicitors and reflects Parliament’s views. various kinds of independent specialists, but the John Swinney made an important point about pool is not inexhaustible. the financial memorandum. I am aware of the It is wrong to say that three quarters of the standing order to which he referred. The Executive budget of the human rights commission will go on intends to produce an amended or supplementary administration. That is not the case at all. The memorandum prior to stage 3. That is appropriate, guys who are appointed as commissioners will not although it is probably not entirely necessary. The just sit about doing nothing; they will exercise the mainstream function of the commission and how it functions of the commission. In the early days of will operate will not be substantially changed by the bill, there was an issue around the lack of a the architecture that we are putting around it. budget line for research and inquiries, but a good The strategic plan offers a mechanism or bit of such work will be carried out by the process, rather than detail how the commission is commissioner and the deputy commissioners to carry out its functions. Apart from the themselves, as was proposed. Separating out the differences in salary arrangements—which are to actual cost of the commissioners or the the advantage of the Parliament—under the commission from the rest of the budget would commission structure, it will not have major create an artificial distinction. It is important that implications for the way forward. Nevertheless, we we have an idea of people’s roles and functions, need to reflect on the Finance Committee’s but separating out the costs in that way would be comments and respond as we can. Officials have artificial, and it would not reflect the reality of the continued to have detailed discussions with the organisation as we would like it to be. corporate body, including discussions yesterday. There is an important issue of expertise. It might We can provide the Parliament with information on not be necessary for all the commissioners to that, which I hope will be satisfactory. However, have a legal qualification, but it will be important the important point is that no change is intended in for the commission to have the facility to call on the overall budget—the Parliament is not being human rights legal expertise. That is an important asked for more money or for a different total sum. aspect of the bill. The human rights field is The changes to the memorandum will be relatively technical and complex, and it will be important that marginal. They will try to reflect some of the the commission is able to involve the proper comments that have been made and to clarify expertise, in the same way as Alice Brown can certain aspects. provide expertise for the investigation of individual If I may say so, Pauline McNeill made a relevant complaints. point in talking about Andrew McLellan, HM chief Karen Gillon commented on devolved powers. I inspector of prisons. We have no intention of think that we have had the argument. We could replacing, supplementing or overlapping with the have set up a body at UK level with responsibility work of the chief inspector. He has a particular for human rights, but the fact is that we did not. role which, as the convener rightly pointed out, he That was a deliberate response to the original carries out to applause from the surrounding consultation. There is no facility, broadly speaking, multitudes. He obviously performs a sensible for the GB commission to involve itself in devolved function. In many ways, the role of the chief inquiries. That is an important distinction. inspector of prisons is an example of the role that the commission for human rights might fill, Returning to the subject of expertise, Brian although in a more general way. Adam’s point about whether there are ways to make human rights expertise more readily My final point on Des McNulty’s suggestion is available in different parts of the country might that, at the end of the day, when we have argued become an issue for the commission. However, about the ins and outs, we could come up with that is nothing to do with the issue of the office, proposals to co-locate any bodies. The Scottish which is the least important aspect. It is more an public services ombudsman’s role and function are †509 3775 20 SEPTEMBER 2006 3776

different from that of the proposed commission for The Convener: When you say somebody, do human rights. The Scottish public services you envisage that being the Executive or the ombudsman is not expert in human rights and corporate body? does not purport to be, although her work touches Mr Swinney: The committee has got to make on aspects of human rights, as is the case with that point and say that it is not prepared to pass other ombudsmen. The commission for human the bill in its present form. The Finance Committee rights will not carry out individual inquiries. has said its bit, although the Executive is yet to Therefore, although an issue might arise about respond to it. However, the Justice 1 Committee commonality of staff, that is not the main issue, has to face the issue now. Through no fault of the because the commission will not deal with committee, it must make the decision. I simply individual complaints, but will carry out the general point out that many of the minister’s arguments promotional and general inquiry work that is laid were about the strengthened powers on co- out in the bill. There will be no change in that. location, but those will not be new powers; they John Swinney made great play of the large will be part of an architecture of which the Finance number of amendments, but almost all of them Committee and Audit Scotland have recently been relate to making the simple change from a critical. commissioner to a commission. The proposed new schedule to which he referred will in large measure replicate the existing schedule 1, with 11:15 appropriate changes and one or two other matters, Mr McFee: I will be happy to accept Mr Brown’s which we will detail to the committee as we work criticism of my comment about the difference through the bill. between the cost of a commissioner and two deputes in the first proposal and a chair of the We need to keep our eye on the ball. The commission and four commission members in the committee has identified a devolved human rights other if he can tell me what he anticipates the cost gap, with which the GB commission cannot deal, would be of the two proposals. If he says that I am that must be closed. That is the purpose of the bill assuming that one proposal is more expensive and of what we intend to set up. If the committee than the other, I presume that he has costed them. and the Parliament do not move in that direction, a I do not think that he answered John Swinney’s gap undoubtedly will arise in what we can do in question, so will he tell me whether a new financial the field of human rights, and Scotland will be the memorandum will be forthcoming? worse for it. Karen Gillon: I want to clarify exactly what the I am not sure whether I have missed anything, proposed commission will do. If I understand the given that some complicated points have been minister correctly, it will not have powers of raised. investigation. Who will investigate alleged The Convener: If you have, I am sure that breaches of human rights? I assume that the members will ask you again. Scottish public services ombudsman has some role in that area and that the GB commission will Mr Swinney: The minister remarked on the also have a role. If the minister can answer that increased provisions in relation to co-location. I question before I ask another, it will help me to simply point out to the committee that the understand exactly who investigates breaches of provisions in amendment 2, which contains the human rights in Scotland. Executive’s proposed replacement for schedule 1, are no different from the provisions in recent The Convener: I will allow the minister to legislation to establish other commissioners. I respond at this point. draw the committee’s attention to an extract from Robert Brown: First, I say to John Swinney that the Audit Scotland report on the co-location of I understand that the Scottish Commissioner for offices that was provided to the corporate body, Human Rights Bill is the first bill setting up a which was critical of the fact that few opportunities commission or ombudsman to contain a provision have been taken to force co-location and of the on co-location. That new provision arose because fact that the Executive has taken little interest in it. the SPCB and others had concerns about their I make that point to highlight that drift has occurred lack of powers over other commissioners in that in the policy area that we are considering. At some regard. The phraseology has not been changed, stage, we will have to bring some order to it. We but since stage 1 the provision has been cannot keep adding to the confusion, duplication supplemented by provisions on greater and lax attitude toward value for money. accountability. The new provision, which is in Somebody has got to introduce some order into paragraph 10 of schedule 1 to the Scottish the process. Commissioner for Human Rights Bill, does not exist in previous bills. It will give the commission

†510 3777 20 SEPTEMBER 2006 3778 power over the location of its offices, subject to the work deals with issues relating to approval of the SPCB. maladministration, there will be cases for which there is another remedy. One of the roles of the Mr Swinney: I can read that, minister, but Scottish commission for human rights will be to paragraph 10 of schedule 1 says absolutely conduct inquiries into the activities of public nothing about co-location. The provision has been authorities and to determine whether they uphold included in the most recent legislation to establish people’s rights in more general terms. There is a a commissioner in response to fierce criticism from series of rights across the board. In education, for Audit Scotland about the lack of such a provision, example, people whose rights to additional which is recorded in paragraph 155 of the Finance support for learning are thought to have been Committee’s report of 15 September 2006. The infringed have particular rights. There are appeal minister says that reference to co-location is in mechanisms that can lead to cases ending up in paragraph 10 of schedule 1, but it is not. the courts. That will be the mainstream way of Robert Brown: Allow me to finish my addressing such issues. It is not intended that comments. I was going on to say that there is also even the GB commission will take on human rights provision to avoid duplication of functions; complaints and follow them through by providing a provision for the SPCB to have to approve the remedy or support for an action. I stress that the commissioner’s budget; and—a point that I did not GB commission will not have competence in make earlier—provision to determine the terms respect of devolved issues. and conditions of the staff appointed by the Marlyn Glen: I welcome amendment 1 in commission. Co-location might or might not be the particular, which addresses the criticism that the absolute answer in some instances. There might bill is trying to establish one person as the sole or might not be space in existing premises or an expert in human rights in Scotland. The Executive opportunity, such as a break in a lease, to move to has improved the bill from that point of view. It is new premises. It is not necessary to include that important that the committee recognises that we specifically in the bill, although the committee raised the issue and amendment 1 deals with it. might take a different view. My question is about finances, and it relates to The bill, together with today’s amendments, if amendments 2 and 21. Amendment 2 states that they are agreed to, will confer on the SPCB annual expenditure proposals will need to be sufficient powers to determine such matters and to approved by the SPCB. I invite you now or later to exert considerable control over them. That is indicate how that sits with amendment 21, which important. The provisions reflect some of the proposes a three-year plan. I am worried about criticisms that have been made. possible conflict between the two provisions. The Bruce McFee spoke about costs. The financial SPCB will consider annual expenditure plans, memorandum includes figures for the salaries of whereas the commission will be required to have the commissioner and depute commissioners as three-year plans. currently proposed in the bill. I think that the The Convener: Amendment 21 will be debated figures are £112,000 in the initial year and later, but you may address it now. £224,000 in subsequent years. Under the proposed provisions, it is assumed that the Margaret Mitchell: Minister, will you reflect on chairing member will be full time and that there will your comment that it would not be appropriate for be up to four other members of the commission, the Scottish public services ombudsman to fill the who will work perhaps 30 days a year. Although role because that option was not consulted on? that is a matter for the SPCB, it is based on the Does not that fail to take into account that, when experience of other commissions that operate in issues are consulted on, sometimes the Executive that kind of way. In that event, the cost will be totally ignores the majority of expressed opinions? £39,000 in the first year and £156,000 in Does not your assertion perpetuate a mistake? subsequent years, which is a significant saving on You have made much of the possible substantial the current provisions. I stress that the precise reduction in salaries. However, it is clear that we terms of appointment and the days involved will be do not know how much staff, pensions and for the corporate body to determine, based on the allowances will cost and what the implications for commission’s requirements. premises will be. Those matters have not been Karen Gillon asked who protects human rights. detailed and there are no firm proposals relating to Human rights are embedded in Scots law, so they them. Surely your assertion that it would be wrong are defensible in court actions, which happens the to separate costs and functions is merely a length and breadth of Scotland all the time, in euphemism for the fact that you do not have a clue criminal and civil cases and in a variety of other how much the proposal will cost? ways. There is provision for people in individual Karen Gillon: I have a couple of questions. If cases to vindicate their rights in that fashion. In so the commissioner, the commission or whatever we far as the Scottish public services ombudsman’s †511 3779 20 SEPTEMBER 2006 3780

call it were given permission to undertake human translate specifically from the plan to budgetary rights inquiries, on what subjects could it implications. Such a connection will not exist. undertake an inquiry under section 6 that the The corporate body and the Finance Committee Scottish public services ombudsman cannot will be interested in the budget for staffing cover? What agencies are not currently covered? I requirements and other expenditure that will be can find none. needed. That will fall under the umbrella of the Paragraph 7 of the proposed new schedule in allocation that the Parliament makes to the new amendment 2, which is on proceedings, says: body. That partly answers one of Karen Gillon’s “The Commission may regulate its own procedure questions. She talked about the accountable (including any quorum).” officer, accounts, audit and the ability to give approval outwith some circumstances. What she Will all commission members require to be present described is all standard practice in the when the quorum is decided? arrangements that have been put in place in Paragraph 12(3) of that schedule, which is on commissions and other bodies. The provisions are the accountable officer, says: almost precisely replicated in the statute that established the Scottish public services “Where the accountable officer is required to act in some ombudsman, so there is nothing new or unusual way but considers that to do so would be inconsistent with the proper performance of the functions specified in sub- about them. paragraph (2)(a) to (c), the accountable officer must … I do not know whether I can readily give an obtain written authority from the Commission before taking the action”. example of when the accountable officer might express the view that Karen Gillon mentioned; I do Why are we to enshrine in law a provision that not believe that that has happened. However, I suggests that an accountable officer should be suppose that the accountable officer might have a able to take action that is outwith their function? view and that somebody else might have a Paragraph 13(4) of the schedule says: different view. The only way to test that would be to have the matter reported to Parliament in some “Sub-paragraph (1)(b) does not require the Parliamentary form. However, I do not think that that has corporation to pay any expenses incurred by the happened. The provisions deal with an issue that Commission which exceed, or are otherwise not covered by, any proposals approved under sub-paragraph (2) or is fairly unlikely to arise and have been expressed (3)”, in terms that are standard not only among commissions but among similar executive bodies. which refer to annual accounts and any revisions. Paragraph 13(5) says: Karen Gillon asked about inquiries under section 6. I think that the position is still misunderstood. “However, the Parliamentary corporation may pay those The public services ombudsman does not conduct expenses.” inquiries into general aspects of the practice of Given that the Parliament has just been bitten on public authorities; she looks into individuals’ the proverbial backside by Scottish Enterprise for complaints of maladministration. She reports on rather a large amount of money, why should we those to Parliament, and that information is often enshrine in law such a practice for the useful in terms of more general issues arising out commission? of it. However, she does not have a general The Convener: I call Bruce McFee. inquiry power and I do not think that she would claim to have one—in fact, I think that she spoke Mr McFee: My question would be better asked about that in her evidence to Parliament. in relation to a later amendment, so I will hold it. The Convener: I call the minister. I know that 11:30 quite a lot of questions have been asked. One of the principal powers of the human rights Robert Brown: We are getting into technical commission will be the power to inquire into the aspects; I will do my best to deal with the policies and practices of particular public questions that I have been asked. Marlyn Glen authorities. For example, a human rights adviser suggested that a conflict might arise between the was called in to advise Carstairs hospital on how it strategic plan and the budget proposals, but that is carried out a range of its functions with regard to not so, because the two matters are separate. It is the human rights of the patients. A report was obvious that the strategic plan will have financial produced and the many changes that were made implications, but the plan will be at a fairly general as a consequence led to the functions being level, which will be reflected in the budget. We carried out more satisfactorily. In fairness, that is should bear it in mind that the plan could be an example concerning an individual body and the amended if need be, for example if discrepancies situation might not be quite the same under the bill occurred. However, it will not be possible to when passed. However, it gives you an idea of the sort of thing that could be done by the commission

†512 3781 20 SEPTEMBER 2006 3782 on a broader basis, in terms of applying human Robert Brown: That is right. The major rights considerations to particular issues. difference is in the powers of inquiry that we propose. The ombudsman does not carry out The Convener: I hear Karen Gillon saying that inquiries in that sense at the moment. The function that is not the question that she asked. is substantially different. Karen Gillon: I asked what additional The Convener: The inquiry power in the bill is organisations or institutions are included in the stronger than the public services ombudsman’s powers of the human rights commissioner that are inquiry power. not included in the powers of the public services ombudsman. Robert Brown: The public services ombudsman does not really have an inquiry power in that Robert Brown: Sorry, I misunderstood your sense. She has a power to inquire into individual question. complaints, not into more general practices and Karen Gillon: As we are talking about the policies of public authorities, which the possibility of giving the powers in the bill to the commission would have. public services ombudsman, I would like to know The Convener: Since we started our what bodies are not currently covered by the consideration of the bill, there has been a lot of public services ombudsman. debate about the need to ensure value for money. Robert Brown: It might be that the public The question of co-location relates to that as well services ombudsman has a wider role in terms of as to efficiency. What is your view on having a bodies. The Scottish Public Services Ombudsman stronger provision in the bill that would direct the Act 2002 lists the bodies that the ombudsman SPCB to consider co-location more closely? I covers. The human rights commission is linked to presume that the power would lie not with the the Human Rights Act 1998 and the powers that Executive but with the corporate body, which go with that. Section 17 of the bill defines a would make the appointments. Scottish public authority as Secondly, should the Parliament consider the “any other person who is a public authority within the commencement date? The function under meaning of the Human Rights Act 1998”. discussion might be carried out by the Scottish That is the touchstone, as it were. As I understand public services ombudsman or it might come it, the definition includes bodies that carry out under this bill—and we might stick with the status functions on behalf of public authorities, such as quo or we might accept the Executive’s bodies that provide services that have been amendments. However, whatever we do, we will tendered out. There is a fair degree of similarity have to make progress. Karen Gillon is right to say between the roles of the two bodies, but the roles that Parliament has endorsed the idea that are expressed in different ways and there will be somebody should exercise the function, no matter differences of detail. how small the gap is. We are deciding who should exercise it, but we should be driven by the desire Karen Gillon: It might be useful to have that not to rush to get things done as soon as possible detail before stage 3. but to do things in the right way. Robert Brown: It is in the bill and the 2002 act. The commencement date will be important. Will The detail from our bill is here— you be discussing whether the date might now be Karen Gillon: I take it that you are saying that later than originally envisaged? I do not think that no one who is not covered by the public services there is a commencement date in the bill, but we ombudsman is covered by your bill. I ask that with can see a pattern. If Parliament gets to stage 3 by regard to the possible decision to give the power the end of the year, and if the bill is given royal of inquiry to the public services ombudsman. assent at the beginning of next year, I would want us to ensure that the corporate body could Robert Brown: I do not think that there is a exercise any functions that we give it in relation to significant difference in the bodies covered. co-location, public accountability and The Convener: That is our understanding. appointments. Whoever exercises the human rights function can Karen Gillon asked some detailed questions— exercise it in relation to the same types of bodies, and that is what stage 2 is for. Later, we will as long as they come under the broad definition of discuss further powers and we will have to be what is a public body or a public authority. The clear how the new body will function. Like Marlyn role of the body with the human rights power Glen, I am concerned that a single would be to consider the application of the commissioner—which is what the bill as it stands European convention on human rights and some would lead to—would feel duty bound to speak on other provisions emerging from other sources of every subject that fell broadly into the field of human rights. human rights, and would have no accountability,

†513 3783 20 SEPTEMBER 2006 3784

no plan, no direction from Parliament and virtually strongly expressed views of the committee and no framework within which to work. Therefore, I Parliament about avoiding duplication. am pleased that the Executive’s amendments On the commencement date, we envisage that would lead to what I regard as a flatter structure. the body will be up and running by October next Will the four appointments all be made by the year, which is the commencement date for the GB corporate body, and will they be members of the commission. There is some logic in that, especially commission? You have suggested that the role of against the background of possible co-location. deputy commissioners will include functions such That is an achievable target when we consider the as research. What kind of work will the other appointments process. members of the commission—as opposed to the I have already expressed my long-held view that commissioner—do? there are several debates to be had about the It will be important to have more than one type wider structures. I accept that a series of other of member on the commission; it should be a agendas about the direction of travel of collegiate body. Even if the function was given to parliamentary commissioners and other executive the Scottish public services ombudsman, I would bodies is swirling around the bill, and it is entirely still be of the view that there should be appropriate that those debates should take place. accountability, some measure of independence, However, the Finance Committee report went into and a structure that allows me to see how people the public domain recently and Lorne Crerar’s decide which human rights issues they take up. I report will come through in due course. The would want transparency—whether we take up the Procedures Committee has also done a report. Executive’s model or Des McNulty’s model. The detail of those reports might or might not appeal to Parliament and other stakeholders in the This should not be about appointing human field. They will require fairly wide consultation and rights lawyers and human rights specialists. Of those arrangements will take some time, bearing course we would expect to have such people on in mind the fact that the existing commissioners the commission, but there are trade unionists who, are in place and have premises, staff, powers, although not specialists in human rights, deal appointment periods and so on. The likelihood of every day with trade union issues that are also any decisions being taken by Parliament about the human rights issues. I would like you to confirm broader structure—and I invite the committee to that the structure that results from either the suggest that that is how it should be done—will not Executive amendments or Des McNulty’s bear fruit for a little while yet. A lot of work will amendments will not just include a group of have to be done on the details. specialist human rights lawyers. We should ask the corporate body to ensure, through its That is not to say that we cannot take on board appointments, that we get a range of people who a series of issues about value for money, have operated in the field. efficiency of operation and the sharing of back- office functions on which the corporate body has Robert Brown: Those were all valid points. On done a lot of work. I am not enthusiastic about the co-location, I have already said that this is a new idea of the human rights commission, which will provision that has not been in any previous bill. have been approved by Parliament by then, We take the view that the power of the corporate hanging about for an indeterminate period while all body to control the matter also gives it power over those issues are considered, but there is a wider co-location, if appropriate. Co-location might not issue and those decisions affect other necessarily be appropriate, but it might be. As I commissions as well. have said on a number of occasions, we have several options that depend on the direction of I think that I am right in saying that similar issues travel that the corporate body wants to take. I have arose around the police complaints commissioner no particular philosophical commitment to the for Scotland—the committee will be familiar with present wording but given that we are not in a that—and the Executive took a similar view on position to say specifically that the commission that. At the end of the day, a certain amount of must co-locate with some other body because we sensitivity is required. We are dealing with do not know the precise staffing arrangements, the parliamentary commissioners and commissions size of the facilities and so on—those are details and they are not entirely matters on which the that will have to be followed through during the Executive should express a definitive view. It is a implementation process—I am not persuaded that matter for Parliament to take such issues forward we can strengthen the current position. I am more in appropriate collaboration with the Executive. than happy to consider and discuss it with the The issue is wider than this bill. committee, but I doubt whether we can make it On your important point about the types of stronger in any practical way. The current member, human rights legal expertise in one form phraseology gives the corporate body appropriate or another will have to be available to the powers, particularly when put together with the commission. We envisage that the commission

†514 3785 20 SEPTEMBER 2006 3786 structure will allow for several people with Robert Brown: I am not saying that the door is expertise or experience in other areas who can closed on that. guide the commission. Experience of trade unions The Convener: The GB commission is not the is a good example and there might be relevant only issue. If I am right, the bill is likely to get royal people engaged in other areas of activity. That is assent in about March. linked to our later amendment about focusing on those whose human rights are not taken account Robert Brown: If the stage 3 debate takes of in the current situation, such as prisoners and place in November, which I think is the plan, I others about whom there has been a lot of would have thought that the bill would get royal publicity. Deprived and excluded communities and assent earlier than that—perhaps in December or individuals should be the focus of the bill. We will January. come to that amendment later, but it is important that there should be a reasonably wide spread of The Convener: That would give us six or seven members in the make-up of the commission so months to resolve issues such as value, that a variety of experience can be brought to accountability, appointments, co-location and bear. where the commission fits in. Robert Brown: Do not get me wrong—I am not saying that the commencement date is a closed 11:45 issue. I am saying that, to date, the underlying The Convener: I want to rewind because I need assumption has been that the Scottish body would to be clear about what you are saying. The start its operation at the same time as the GB decision about which model to go for is difficult. commission. The committee should remember that Under the Executive’s proposals, the structure co-location is available as an option only until the would remain the same, but I think that we need to GB commission makes its own arrangements and make progress on it. I might be picking you up gets on with things. If commencement is delayed, wrong, but it sounds as if you are saying that you one door on co-location may be closed. want to stick with the 2007 date and that you do not think that it is for us to push co-location any The Convener: We know that the Scotland further. office of the GB commission will be in Glasgow and that the Scottish public services ombudsman Robert Brown: I am not saying that at all. I am is in Edinburgh. That illustrates why we did not saying that co-location is central and that it can be resolve matters with the public services dealt with under the current provisions. Indeed, ombudsman. I would like all three bodies to discussions have taken place to facilitate the consider co-location. All I am saying is that we possibility of appropriate co-location. That option have to put our foot down somewhere; will be available to the corporate body when it unfortunately, it may have to be here. The comes to make appointments. Executive’s intention on commencement is an The Convener: That is fair enough. important factor in how I will vote. I know that your preference is to proceed with the proposed date, The second issue is commencement. I received but will you consider discussion about that at the Finance Committee’s report only yesterday, so stage 3? I have not got through it all yet, but I think that the Finance Committee’s views on the matter are Robert Brown: Yes. It was not my intention to important. If you are saying that it is still the suggest that the door was closed on that; I was Executive’s position that it wants to rush into merely indicating the direction of travel. If the implementation in 2007, I would be concerned committee has particular views on the subject, we about that. Is that your position? will listen to the committee and engage with it. However, I make the point that if the GB Robert Brown: It is not a question of rushing commission goes ahead and chooses its into anything. As I have said, the commission has premises, which will involve a lease being signed been consulted on for a very long time. Its and so on, that might close off one co-location structure fits in with that of the other bodies in the option. It is important that we enact the bill at the way in which I have explained. Space has been proper time, if co-location is the direction in which left for it in setting up the GB commission. Given we want to travel. that the GB commission will have a specific role in reserved matters and a Scottish office, it would be The Scottish public services ombudsman quite odd if it were to set up— already has offices. I do not know what the terms of the lease are, when the break point is or what The Convener: If you are telling me that the the space arrangements are, but it is my door is closed on the commencement date, I will understanding that if there was to be co-location, have to consider my position on the Executive’s new provision would have to be made to amendments. accommodate both the ombudsman’s operations and the operations of the commission. That is why †515 3787 20 SEPTEMBER 2006 3788

there was interest in the suggestion that she could The Convener: May I clarify the Finance have a presence in the office of the GB Committee’s position? Do you mean that, once we commission in Glasgow. If that were possible, that make the strategic decision about how the function would be an attractive option. Such issues should is exercised, we need to have a discussion about underlie the discussion about progress on where that fits in the wider context of other implementation. commissions and bodies? Do you envisage that the corporate body, which makes the The Convener: I will allow some brief questions. appointments, would have to consider asking After that, I will check that the minister has another body to relocate? covered everything that he wants to say and will invite Des McNulty to sum up. Mr Swinney: Those are some of the practical difficulties that the corporate body would have to Mr Swinney: I have a comment on the final area wrestle with but, in its defence, the corporate body that the convener raised with the minister, which I will be exposed to the same allegation of think goes to the nub of the issue of how things interfering in the independence of bodies. For should proceed. example, if it tells an organisation that it is located The Finance Committee wrestled with the issues in the wrong place, it will be accused of intruding in the report that we have just published in a on its independence. genuine attempt to ensure that there was no Our recommendation for a moratorium was duplication, lack of attention to value for money or designed to prevent the situation from getting congestion of infrastructure in the appointment of worse and to advise the Government to let the commissioners. That was our ground. One Professor Crerar’s review, of which the corporate difficulty that we encountered was an assertion body can be part, consider some of the issues and made by various witnesses that once a body such try to make the architecture more transparent and as an ombudsman or commissioner is established, efficient and less congested. Those objectives will it is seen as an intrusion on their independence if not be served by adding into the mix another body Parliament says that it is going too far, spending that may have a stand-alone, distinct purpose. too much money or locating its offices in the wrong That reinforces the point that Des McNulty is place. making. As paragraph 155 of our 7th report of 2006 Karen Gillon: I have a question of clarification states, Audit Scotland said to the corporate body: for the minister. I know that your position is “The optimum time for achieving efficiencies in shared different from Des McNulty’s. services is generally when organisations are being established.” Robert Brown: That is reasonably clear. That point could not have come across more Karen Gillon: Is my understanding right that, if strongly than when we recently tried to say to we as a committee gave the general inquiry various bodies that they were spending too much function to the Scottish public services money and there was too much proliferation and ombudsman and wanted additional staffing—a overlap. Our experience was that the hands went deputy ombudsman—to perform that specific up and people said that we were intruding on function, her remit would cover all bodies? Is it bodies’ independence. Your point about ensuring simply a question of the inquiry function and the that the system is right before it starts is central, promotion of human rights? because if it is wrong when it starts, it is next to Secondly, you have yet to answer the specific impossible to get it under control afterwards. questions that I asked you—you simply said that The thinking behind the Finance Committee’s what I described has been standard practice in recommendation that the Executive should previous bills. I would argue that part of the consider a moratorium on the establishment of Finance Committee’s problem is that we—I am as further bodies was to say, “Don’t make the guilty as anyone else—have not considered some problem worse. Don’t let any more horses out of provisions in bills in enough detail and that we the stable if we cannot get them back in.” We all have allowed far too much flexibility to agree dispassionately that there is too much organisations that are outwith the Parliament’s congestion in this policy area. There are too many financial control but for which it must pay money. I players, and too much money is being spent. see the minister shaking his head. He might think Once bodies are established, it is difficult to bring that that is rubbish, but people are clearly saying the situation under control without a suggestion that that is the case. that Parliament is intruding on their independence, As convener of the Education, Culture and Sport which none of us wants to do. Your cautionary Committee, I was responsible for taking through words about getting it right before we start and the Parliament the Commissioner for Children and about the commencement date are the nub of the Young People (Scotland) Bill. From then, I have issue that the committee must wrestle with. learned salutary lessons about the details of bills †516 3789 20 SEPTEMBER 2006 3790 and the dialogue that must take place and, as a also make provision to deal with issues beyond result, I am very concerned about the provisions in that, although I cannot imagine the circumstances paragraphs 12 and 13 of the proposed new under which such issues would arise in connection schedule that amendment 2 would introduce. I am with the bill that we are discussing. How to deal thinking about my experience of Scottish with such matters is very much at the Parliament’s Enterprise on the Enterprise and Culture discretion, within the control of the corporate body Committee. Given that any money will come from and—in due course—within the control of the the Parliament and not the Executive, I have not Finance Committee. In that context, we are yet received any clarification of why provision certainly not talking about an out-of-control body. should be made for people to prepare accounts The Convener: It would make sense to return to and have those accounts updated as well as for Marlyn Glen’s question. She mentioned the budget extra expenses to be paid. If the Executive wants and the strategic plan. You said that no conflict to make available extra money, that is fine, but was involved, but should there be a relationship any such money will come from the Parliament, between the strategic plan and the budget? The not the Executive. strategic plan involves setting out areas in which Robert Brown: The main point—which I think money will be spent. If, for example, a mental Karen Gillon accepts—is that the central player is health issue were thought to exist and the the corporate body on behalf of the Parliament. I strategic plan says that research will be entirely accept that the corporate body has very commissioned into the area, that suggests a likely general powers in that respect, but it is budget. Whether the strategic plan should tie up answerable to the Finance Committee. with the budget may be worth considering. The provision to which Karen Gillon takes particular exception says that the corporate body 12:00 could pay certain on-the-edge or dubious Robert Brown: The strategic plan will feed into expenses. It should be borne in mind that the and be a foundation document for the budget. We operation of the commission, like that of any other should bear it in mind that we are primarily talking commission or executive body, comes within the about a four-year strategic plan. Although the plan domain of the Parliament’s budgetary provisions will feed into the budget, as I said, it will not and the things that go with that. The Finance translate readily into direct budget implications. Committee’s scrutiny, accountable officers and For argument’s sake, if it was said that in year 2 or budgets are all important. The process has a 3 of the plan, research was to be undertaken into structure of accountability—that is its whole point. I mental health, that would have to be tendered for cannot envisage a situation in which the corporate or scoped out, but it would not translate into a body would decide to ask for money to make a precise figure. In the back of our mind would have payment in such a way, although I suppose that it to be the idea that one bit of research rather than might happen with some fringe issue. However, 10 could be undertaken, because that would be the provision applies in precisely the same terms manageable within the budget’s broad for every commissioner or public body of that sort parameters—that may be a matter of how long is and—no doubt in a slightly different way—to the taken to do the work or how it is staged. I do not expenditure of executive bodies. The fact is that— see the formulaic connection between the Karen Gillon: But do you not accept that the strategic plan and the budget that your question Parliament has had to pay money as a result of suggests. the actions of organisations such as Scottish I will comment on John Swinney’s observations Opera and Scottish Enterprise over which it has about the commission’s independence. I know no financial control because it has been left with something of that, as I served on the corporate no option? In the light of the lessons that we have body—as Des McNulty has done—from its early learned from the past, I am concerned about the days, and I was responsible for commissioner bill’s provisions. issues. There is no doubt that we struggled with Robert Brown: I do not want to enter into the those issues, but in the more recent past we have issues surrounding Scottish Enterprise, but I had a developing view of Parliament’s powers and understand that there could have been different position, greater willingness by the corporate body options if another direction of travel had been to exercise those powers and a considerable preferred; however, other issues were involved. emphasis, which comes from the Finance That is a different ball game in many respects Committee and others throughout the Parliament, because of the sheer size of the issue, but the on the accountability of those bodies to reality is that any such body must stick within the Parliament, certainly financially. budget that the Parliament has set it in order to My personal view is that none of that interferes meet its accountability and budgetary obligations. with bodies’ independence, but the precise That is what the arrangements provide for. They relationship has been governed by protocols and

†517 3791 20 SEPTEMBER 2006 3792

agreements. That may well be the way forward, ombudsman’s operation. To be fair, I do not think but under the proposals in the bill the corporate that the ombudsman saw it in that way, either. She body would have much enhanced powers to flex recognised several distinctions in relation to her its muscles—if need be—on financial and powers and between how she and a human rights accountability issues. commission would operate. I entirely accept that the optimum time for We have had a wee bit of a lopsided debate efficiency is the start but, as I have tried to say, because of the way in which it came forward. No such matters are mostly not for the bill. We have in doubt things can always be done differently, but I place the mechanisms to enable us to act, and suggest that the phraseology and direction of extensive conversations have taken place with the travel that the Executive proposes is a much more corporate body about the shape of implementation satisfactory answer than the suggestion of the procedures and the direction of travel. We know a Scottish public services ombudsman taking over fair bit about all that at an official level, which will the function. go towards smoothing out some of the issues. Des McNulty: I suppose that my task is to Perhaps we can provide the committee with a little convince the committee that what I propose is more information on aspects of that; I will take better than the status quo—a standalone official guidance on that. If that would help the commissioner—or the Executive proposal, which committee’s understanding of where we are going is to establish a commission. I will make that point on some of the detailed issues, perhaps we could by drawing on some general features of the do something. debate. When the Parliament passes legislation, it The Convener: I will take a brief question from has a responsibility to be absolutely clear about John Swinney. what that legislation is intended to do, what remits it creates and how accountability is to be Mr Swinney: I am not sure whether the minister managed. The only conclusion that I can draw has thoroughly read the Finance Committee’s from the debate is that too many of those issues report, which is an agonising document about the have not yet been satisfactorily resolved. difficulties of resolving such issues. I am afraid that the picture that the minister paints of a I am concerned—and the committee should be superpowerful corporate body that has a suite of concerned—that there is a significant lack of new powers to act is not one that I recognise from consensus about the setting up of an independent the evidence that the Finance Committee took. commission with the proposed format. I believe that we should proceed only on the basis of a The Convener: The committee is clear about strong cross-party consensus and that we should the fact that we are trying to move on in the bill. have a great degree of clarity about how to However, I am sure that I am not alone in thinking proceed before we do so. I am not sure that we that the bill does not go far enough. We will have have those things. I do not think that many to consider that at stage 3. members of the committee, however they feel I ask the minister to summarise any points that about the advantages and disadvantages of the have not been covered. proposals, feel comfortable with where we have got to. Robert Brown: I do not want to add much more. I suggest that a distinction exists between the The Finance Committee’s view is clear. It arrangements in the bill, which will be significantly believes that we should not proceed until we have enhanced in comparison with those in other bills in sorted out the fundamental issues of financial the light of developing information from the accountability and accountability more generally. Procedures Committee, the Finance Committee Some additional issues also come into play, and others, and what may or may not happen to including the concern about overlaps and the general architecture and superstructure of duplication and the orientation of different bodies, bodies. which, as John Swinney said, are competing in a crowded field. I am confident that, in implementing the arrangements in the bill, we can deal more My proposal has the advantage of simplifying satisfactorily with an awful lot of the issues that the position for the general public. The Executive’s have been raised. However, if the commission is approach would add to the complexity of the to fulfil the role that the committee has in mind for terrain by creating an additional standalone body. it, it must have both the powers to do that and the My proposal would combine the functions with an scope for the human rights element, which is existing body so that people who seek to get a central, to be at the forefront and not to be a by- human rights matter resolved will go to fewer blow of somebody else’s provision. That is the big different offices. The ombudsman has shown that difference between my view and Des McNulty’s: I she has the proven skills to take on the additional do not see the human rights element as just a responsibilities. Some additional staff would be subsidiary part of the Scottish public services required, but there would be no requirement for an †518 3793 20 SEPTEMBER 2006 3794 additional receptionist, finance officer, human ombudsman. That is my misunderstanding. I stood resources manager, specialist telephonists and so ready to explain the commission aspects of our on. proposal, which I still think need to be explained and dealt with. Finance is an important issue. The public out there are interested in whether they get value for The Convener: I thought you had done that. money. I am not sure whether they will be Robert Brown: No, I had not. I was asked at the convinced by the number of angels dancing on the beginning to separate the two issues. head of a pin, in terms of the independence or separation of bodies, if we can achieve the same The Convener: Yes—that is why I went to Des outcome for significantly less money. I believe that McNulty, who summarised on the ombudsman. we can do that by combining the functions of the Then I went to you. proposed commissioner with those of the Scottish public services ombudsman’s office. Robert Brown: I am sorry, but that was not clear to me. Perhaps that was the position— Robert Brown added to the complexity of the issues in his responses to Karen Gillon’s The Convener: I took all the questions to you legitimate points about where the inquiry powers from committee members in relation to your rest. The Executive needs to think carefully about proposal. I then asked you to come back on that exchange because it did not contain great anything that was not covered. clarity. If I understood Robert Brown’s answers Robert Brown: Yes, but I thought you were correctly, they significantly added to the case for referring to the ombudsman proposal. what I am suggesting. The Convener: Is there anything, then— My proposal is not fully worked out because, obviously, I do not have the resources that the Robert Brown: I would like a brief opportunity to Executive has. However, what I suggest is a explain, if I may, the Executive’s proposals on the pragmatic solution to how we should take things commission, which is what I think should really forward. have been the substance of the main part of the debate. If the Executive wanted to pull back, rethink what it is doing and come back with a better The Convener: Let me be clear. I will start from proposal, I would be prepared to withdraw the beginning again. My feeling, as convener, was amendment 120. However, if the Executive that there was a rather large bloc of amendments intends to proceed with what it proposes, then and that your amendments should be considered what I propose should be at least given the side-by-side with Des McNulty’s because they are opportunity to be considered alongside that, opposing proposals. Therefore, I made an informal because I think that it has significant advantages. suggestion that we should have a miniature debate around the issue of the ombudsman. We The Convener: Are you pressing amendment had that debate, in which most of the questions 120? were directed to Des McNulty. In the second bit, most of the questions were directed to you. That Des McNulty: Unless the Executive says that it was a way of separating out the debate to enable will go away and think again, I will press Des McNulty to answer his questions and you to amendment 120. answer yours. Robert Brown: Just for the avoidance of doubt, I have to say also that I had to make a ruling as convener, do I now speak to the main proposal on to whether Des McNulty’s amendments are the commission? You indicated at the beginning actually within the scope of the bill. The advice that there would be a separate sub-debate. that I got was that they are on the borderline. I felt The Convener: No. that, in the interests of the debate that we have just had, they should be included in the marshalled Robert Brown: With respect, that is what you list. However, I point out for the record that I was said. You said that there would be two separate given advice at stage 1 that to move from what is debates, one of which would be on the currently proposed in the bill to a proposal to ombudsman, and the other— follow the Scottish public services ombudsman The Convener: Yes, that is why I moved to you. model would be to go outwith the scope of the bill. I allowed Des McNulty to answer questions in the That is something that I probably need to discuss first debate, and then I came to you. I asked you again at stage 3. finally whether you felt that any issues had not I have allowed a lot of flexibility during the been covered. The pressing of amendment 120 meeting. However, if you wish to speak now, you has now ended our consideration of section 1. will need to be brief and address only points that Robert Brown: I am sorry, but I thought you have not been covered. I will still have to give Des were referring to the on-going debate on the †519 3795 20 SEPTEMBER 2006 3796

McNulty the last word. If he is satisfied with that, be a member of either the SCHR or its staff. The that is what I propose to do. accountable officer would be designated by the parliamentary corporation. That would provide Robert Brown: I am grateful for that. I am sorry more flexibility. if there has been a misunderstanding on my part. What I wanted to do was explain the Executive’s As I mentioned already, we are also providing amendments a little bit. an explicit requirement—in paragraph 13(2) of proposed new schedule 1—for the commission to In general terms, we are trying to create a submit its proposed annual budget to the commission instead of a commissioner. That really parliamentary corporation for approval. Again, that reverts to a proposal that was consulted on at an delivers on a previous commitment. earlier point. In my view, that was actually a better way of drafting the bill. I was pleased therefore to Other minor changes would bring the support that aspect of the amendments. commission within the jurisdiction of the public services ombudsman and the information Amendment 1 proposes replacing section 1 with commissioner. Proposed new schedule 1 would a new section that would establish simply provide those persons with the ability to “a body corporate to be known as the Scottish Commission investigate issues in the context of the SCHR. for Human Rights”. That is pretty much a fringe issue. Amendment 2 goes on to propose a new, revised The 100 amendments that John Swinney schedule 1, which we have talked about. Most of mentioned would change the name of the new the proposed new schedule would replicate the body from “Scottish Commissioner for Human key provisions of schedule 1 as introduced, Rights” to “Scottish Commission for Human particularly those about office location, the number Rights” and make other appropriate changes to of SCHR staff, their terms and conditions of the wording. employment and approval by the Parliamentary corporation. I thank the convener for providing me with an opportunity to explain the implications of some of The Executive proposes other changes to the the other amendments. architecture of the commission, which we have also talked about. There would be a chair and up The Convener: Does Des McNulty have to four other members of the commission. I am not anything to add? sure whether it is a major point, but I should Des McNulty: I do not have much to add, as I explain that Her Majesty would appoint the chair have made my points about value for money and on the nomination of the Parliament, which is the overlap in remit. similar to what happens with the existing commissioners. The Parliamentary corporation My preference is still that the role of the new would appoint the other commission members, body should be combined with—not, as Robert who could be either full time or part time. Brown claimed, subsumed by—that of the public However, as I have indicated, we envisage that services ombudsman. In my view, that would not the chair would be full time and the other members lead to any differentiation in status. I accept that part time, which is why I said that there would be issues of staffing and so on would need to be administrative savings out of all that. We have considered further if my proposal was accepted, proposed consequential changes because of that. but I will flesh out more of the detailed implications if my amendments are agreed to. In practice, Incidentally, we think that the proposed method however, that might rest with the Executive. of appointment would make it a bit easier to go through the procedures than would a fully blown If amendment 120 is unsuccessful, I will need to procedure involving a royal warrant. consider the position in relation to future stages of the bill. We have also set out in paragraph 5 of proposed new schedule 1 the specific grounds on I press amendment 120. which commissioners could be dismissed, which The Convener: The question is, that could be done only if two thirds of those voting in amendment 120 be agreed to. Are we agreed? Parliament voted for dismissal. That proposal came from the Procedures Committee report on Members: No. the issue. The Convener: There will be a division.

FOR 12:15 McFee, Mr Bruce (West of Scotland) (SNP) Proposed new schedule 1 would also do away Mitchell, Margaret (Central Scotland) (Con) with the requirement that the new body must have

a chief executive. We have changed the provision by requiring that the SCHR’s accountable officer †520 3797 20 SEPTEMBER 2006 3798

AGAINST Glen, Marlyn (North East Scotland) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) Pringle, Mike (Edinburgh South) (LD)

ABSTENTIONS Gillon, Karen (Clydesdale) (Lab) The Convener: The result of the division is: For 2, Against 3, Abstentions 1. Amendment 120 disagreed to. Amendment 121 not moved. Amendment 1 moved—[Robert Brown]. The Convener: The question is, that amendment 1 be agreed to. Are we agreed? Members: No. The Convener: There will be a division.

FOR Glen, Marlyn (North East Scotland) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) Pringle, Mike (Edinburgh South) (LD)

AGAINST Gillon, Karen (Clydesdale) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Mitchell, Margaret (Central Scotland) (Con) The Convener: The result of the division is: For 3, Against 3, Abstentions 0. I will use my casting vote, as I have always used my casting vote, in favour of the status quo. I am advised that that means in favour of the bill as it stands. Therefore, I cast my vote against amendment 1. Amendment 1 disagreed to. The Convener: I propose that we should stop there as it is clear that we will not get through the rest of the bill today and we have other business to consider, which we have already agreed will be taken in private, in relation to the Criminal Proceedings etc (Reform) (Scotland) Bill. I apologise to the minister and his officials, but we will need to return to the Scottish Commissioner for Human Rights Bill next week. I imagine that members would like a brief break before we go into private session, so I suspend the meeting.

12:19 Meeting suspended.

†521 Scottish Commissioner for Human Rights Bill

2nd Marshalled List of Amendments for Stage 2

The Bill will be considered in the following order—

Section 1 Schedule 1 Sections 2 to 7 Schedule 2 Sections 8 Schedule 3 Sections 9 to 19 Long Title

Amendments marked * are new (including manuscript amendments) or have been altered.

Section 1

Des McNulty 149 Leave out section 1 and insert—

Schedule 1

Des McNulty 150 In schedule 1, page 11, line 5, leave out

Des McNulty 151 In schedule 1, page 11, line 17, leave out

Des McNulty 152 In schedule 1, page 11, line 25, leave out

SP Bill 48-ML2 1 Session 2 (2006) †522 Des McNulty 153 In schedule 1, page 11, line 31, leave out

Robert Brown 133 In schedule 1, page 11, line 33, leave out from to the end of line 3 on page 12 and insert

Des McNulty 154 In schedule 1, page 12, line 4, leave out

Robert Brown 134 In schedule 1, page 12, line 5, leave out and insert

Robert Brown 135 In schedule 1, page 12, leave out lines 8 to 10

Des McNulty 155 In schedule 1, page 12, line 8, leave out

Des McNulty 156 In schedule 1, page 12, line 11, leave out

Des McNulty 157 In schedule 1, page 12, line 14, after insert

Des McNulty 158 In schedule 1, page 12, line 15, leave out and insert

2 †523 Des McNulty 159 In schedule 1, page 12, line 16, at end insert

Des McNulty 160 In schedule 1, page 12, line 30, leave out

Des McNulty 161 In schedule 1, page 13, line 2, leave out

Des McNulty 162 In schedule 1, page 13, line 4, leave out

Des McNulty 163 In schedule 1, page 13, line 6, leave out

Des McNulty 164 In schedule 1, page 13, line 17, leave out

Des McNulty 122 In schedule 1, page 13, line 23, leave out paragraph 10 and insert—

Robert Brown 136 In schedule 1, page 13, line 24, at end insert— <( ) In determining the location of the Commissioner’s office premises under sub-paragraph (1), the Commissioner must, with a view to ensuring the economic, efficient and effective use of the Commissioner’s resources, have regard to the desirability of sharing premises with another public body.>

Des McNulty 123 In schedule 1, page 13, leave out line 26

Robert Brown 137 In schedule 1, page 13, line 28, leave out

Des McNulty 124 In schedule 1, page 13, line 28, leave out and insert

3 †524 Des McNulty 125 In schedule 1, page 13, line 29, leave out

Des McNulty 126 In schedule 1, page 13, leave out lines 32 and 33

Des McNulty 131 In schedule 1, page 14, line 3, at end insert—

Robert Brown 138 In schedule 1, page 14, line 5, leave out and insert

Des McNulty 127 In schedule 1, page 14, line 5, leave out and insert

Des McNulty 139 In schedule 1, page 14, line 5, leave out and insert

Des McNulty 128 In schedule 1, page 14, line 10, leave out from second to end of line 11

Des McNulty 129 In schedule 1, page 14, leave out lines 14 to 19

Des McNulty 132 In schedule 1, page 14, line 21, at beginning insert— <(1) The Commissioner must submit an annual budget application, which sets out the expected costs of carrying out the Commissioner’s functions during the year to which the application relates, to the Parliamentary corporation for its approval. (2) Following submission of an application under sub-paragraph (1), the Parliamentary corporation may, if it considers it appropriate, require the Commissioner to submit a revised application for its approval. (3) The Parliamentary corporation shall not make any payment in respect of a particular year under sub-paragraph (4) until it has approved the Commissioner’s annual budget application for that year.

4 †525 (4)>

Robert Brown 140 In schedule 1, page 14, line 22, leave out and insert

Des McNulty 165 In schedule 1, page 14, line 22, leave out

Robert Brown 141 In schedule 1, page 14, line 29, at end insert— <(2) The Commissioner must, before the start of each financial year, prepare proposals for the Commissioner’s expenditure during the year and send the proposals to the Parliamentary corporation for approval by such date as the Parliamentary corporation may determine. (3) The Commissioner may, in the course of a financial year, prepare revised proposals for the Commissioner’s expenditure during the remainder of the year and send the proposals to the Parliamentary corporation for approval. (4) Sub-paragraph (1)(b) does not require the Parliamentary corporation to pay any expenses incurred by the Commissioner which exceed, or are otherwise not covered by, any proposals approved under sub-paragraph (2) or (3). (5) However, the Parliamentary corporation may pay those expenses. (6) The financial year of the Commissioner is— (a) the period beginning with the date on which the first Commissioner is appointed and ending with 31st March next following that date, and (b) each successive period of 12 months ending with 31st March.>

Robert Brown 142 In schedule 1, page 14, line 37, leave out from beginning to end of line 3 on page 15

Robert Brown 143 In schedule 1, page 15, line 6, at end insert—

Freedom of information In the Freedom of Information (Scotland) Act 2002 (asp 13), in schedule 1 (which lists the Scottish public authorities subject to that Act), in Part 7 (other authorities), after paragraph 81 insert— “81A The Scottish Commissioner for Human Rights.”.>

5 †526 Section 2

Robert Brown 5 In section 2, page 1, line 24, leave out

Robin Harper 104 In section 2, page 1, line 24, leave out and insert <, understanding and protection>

Robert Brown 6 In section 2, page 1, line 26, leave out from <, and> to end of line 3 on page 2

Robert Brown 7 In section 2, page 2, line 8, at end insert— <( ) In this section, “promote”, in relation to human rights, means promote awareness and understanding of, and respect for, those rights.>

Robin Harper 7A As an amendment to amendment 7, line 2, leave out and insert <, understanding and protection>

Robert Brown 144 In section 2, page 2, line 12, at end insert <, and ( ) human rights of those groups in society whose human rights are not, in the Commissioner’s opinion, otherwise being sufficiently promoted.>

Section 3

Robert Brown 12 Leave out section 3

After section 4

Robert Brown 145 After section 4, insert—

6 †527 (2) The Commissioner must consult the Scottish Law Commission before undertaking a review of any area of the law under subsection (1)(a).>

Robert Brown 146 After section 4, insert—

Section 5

Robin Harper 105 In section 5, page 2, line 36, at end insert

7 †528 Section 6

Robin Harper 106 In section 6, page 3, line 34, leave out subsections (2) to (8)

Section 7

Robin Harper 107 In section 7, page 4, line 26, leave out

Robin Harper 108 In section 7, page 4, line 32, leave out subsection (2)

Robert Brown 147 In section 7, page 5, line 3, at end insert— <( ) In section 34(2) of the Legal Aid (Scotland) Act 1986 (c.47) (which specifies the purposes for which the restriction in section 34(1) of that Act on disclosure of information furnished to the Scottish Legal Aid Board does not apply), after paragraph (d) insert— “(e) for the purposes of an inquiry by the Scottish Commissioner for Human Rights under section 5 of the Scottish Commissioner for Human Rights Act 2006 (asp 00).”>

Schedule 3

Robert Brown 47 In schedule 3, page 16, line 34, leave out paragraph 1

Robert Brown 148 In schedule 3, page 17, line 12, leave out and insert

Robert Brown 49 In schedule 3, page 17, line 14, at end insert—

Robert Brown 50 In schedule 3, page 17, line 16, leave out paragraph 3

8 †529 Section 9

Robin Harper 109 In section 9, page 5, line 25, leave out

Robin Harper 110 In section 9, page 5, line 38, leave out subsection (5)

Section 10

Des McNulty 166 In section 10, page 6, line 3, leave out

Section 11

Robert Brown 64 In section 11, page 6, line 25, leave out and insert

Robin Harper 111 In section 11, page 6, line 25, leave out and insert

Robin Harper 112 In section 11, page 6, line 25, leave out <, except children’s hearing proceedings> and insert

Robin Harper 112A As an amendment to amendment 112, line 2, at end insert

Robert Brown 67 In section 11, page 6, line 32, after insert

Robert Brown 74 In section 11, page 7, line 4, after insert

Robert Brown 76 In section 11, page 7, line 6, leave out and insert

Robert Brown 78 In section 11, page 7, line 9, leave out and insert

9 †530 Robin Harper 113 In section 11, page 7, line 13, leave out <“civil> and insert <“legal>

Robin Harper 114 In section 11, page 7, leave out lines 15 to 18

Robin Harper 115 In section 11, page 7, line 19, after insert <, High Court of Judiciary>

Robin Harper 116 In section 11, page 7, line 19, leave out

Robin Harper 117 In section 11, page 7, line 20, after insert

Robin Harper 118 Leave out section 11 and insert—

10 †531 (b) are, except as provided by subsection (3), subject to any limitation or restriction imposed by virtue of an enactment or in accordance with the practice of a court.>

Section 12

Robert Brown 83 In section 12, page 7, line 29, leave out and insert

Robert Brown 86 In section 12, page 7, line 30, leave out from <, and> to end of line 32

Des McNulty 130 In section 12, page 7, line 35, at end insert— <(4) Nothing in this Act prevents a report under this section from being combined with an annual report of the Scottish Public Services Ombudsman. (5) In any combined annual report under subsection (4) of the Scottish Public Services Ombudsman and Scottish Commissioner for Human Rights the accounts will be separate for each body.>

Section 14

Robert Brown 95 Move section 14 to after section 4

After section 14

Robin Harper 119 After section 14, insert—

Section 18

Des McNulty 167 In section 18, page 9, leave out lines 29 and 30

11 †532 Scottish Commissioner for Human Rights Bill

2nd Groupings of Amendments for Stage 2

This document provides procedural information which will assist in preparing for and following proceedings on the above Bill. The information provided is as follows: x the list of groupings (that is, the order in which amendments will be debated). Any procedural points relevant to each group are noted; x a list of any amendments already debated.

Groupings of amendments

Post of deputy Commissioner 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 139, 165, 166, 167 Notes on amendments in this group Amendment 155 is pre-empted by amendment 135 in the group “Terms of office and remuneration and other organisational matters”. Amendment 138 in the group “Terms of office and remuneration and other organisational matters” and amendment 139 are direct alternatives.

Terms of office and remuneration and other organisational matters 133, 134, 135, 136, 137, 131, 138, 132, 140, 141, 142 Notes on amendments in this group Amendment 135 pre-empts amendment 155 in the group “Post of deputy Commissioner”. Amendment 137 pre-empts amendment 124 (debated last week). Amendment 138 pre-empts amendment 127 (debated last week). Amendment 127 (debated last week) pre-empts amendment 139. Amendment 138 and amendment 139 in the group “Post of deputy Commissioner” are direct alternatives.

Addition to lists of Scottish public authorities in other enactments 143

General duty to promote human rights 5, 104, 6, 7, 7A, 144 Notes on amendments in this group Amendment 5 pre-empts amendment 104.

SP Bill 48-G2 1 Session 2 (2006) †533 Specific duties and powers 12, 145, 146, 83, 86, 95

Power to conduct inquiries etc. 105, 106, 107, 108, 109, 110

Legal aid: disclosure of information 147

Places of detention: requirement to give notice and evidence of authority 47, 148, 49, 50

Institution of and intervention in legal proceedings 64, 111, 112, 112A, 67, 74, 76, 78, 113, 114, 115, 116, 117, 118

Power to make grants 119

Amendments already debated

Appointment of a Commissioner/establishment of a Commission With 120 – 122, 123, 124, 125, 126, 127, 128, 129, 130

†534 JUSTICE 1 COMMITTEE

EXTRACT FROM THE MINUTES

34th Meeting, 2006 (Session 2)

Wednesday 27 September 2006

Present:

Marlyn Glen Bruce McFee Pauline McNeill (Convener) Margaret Mitchell Mrs Mary Mulligan Mike Pringle Stewart Stevenson

Scottish Commissioner for Human Rights Bill: The Committee considered the Bill at Stage 2 (Day 2).

The following amendments were agreed to (without division): 125, 126, 140, 147, 47, 148, 49, and 50.

The following amendments were agreed to by division—

133 (For 5, Against 0, Abstentions 1) 134 (For 6, Against 0, Abstentions 1) 135 (For 4, Against 0, Abstentions 3) 136 (For 4, Against 2, Abstentions 1) 123 (For 7, Against 0, Abstentions 0) 137 (For 6, Against 0, Abstentions 1) 138 (For 6, Against 0, Abstentions 1) 141 (For 6, Against 0, Abstentions 1) 142 (For 6, Against 0, Abstentions 1) 143 (For 6, Against 0, Abstentions 1) 5 (For 6, Against 0, Abstentions 1) 6 (For 4, Against 2, Abstentions 1) 7 (For 6, Against 0, Abstentions 1) 144 (For 4, Against 3, Abstentions 0) 12 (For 5, Against 0, Abstentions 1) 145 (For 5, Against 0, Abstentions 1) 146 (For 5, Against 0, Abstentions 1) 64 (For 4, Against 0, Abstentions 2) 67 (For 4, Against 0, Abstentions 2) 74 (For 4, Against 0, Abstentions 2) 76 (For 4, Against 0, Abstentions 2)

†535 78 (For 4, Against 0, Abstentions 2) 83 (For 4, Against 0, Abstentions 2) 86 (For 4, Against 0, Abstentions 2) 95 (For 5, Against 0, Abstentions 1)

The following amendments were disagreed to by division—

149 (For 3, Against 4, Abstentions 0) 131 (For 3, Against 4, Abstentions 0) 139 (For 3, Against 4, Abstentions 0) 132 (For 3, Against 4, Abstentions 0) 7A (For 2, Against 4, Abstentions 1) 105 (For 1, Against 5, Abstentions 0)

Amendment 119 was moved, and with the agreement of the Committee, withdrawn.

The following amendments were not moved: 150, 151, 152, 153, 154, 156, 157, 158, 159, 160, 161, 162, 163, 164, 122, 128, 129, 165, 106, 107, 108, 109, 110, 166, 111, 112, 112A, 113, 114, 115, 116, 117, 118, 130, and 167.

The following amendments were pre-empted: 155, 124, 127 and 104.

Sections 1, 4, 5, and 6, schedule 2, sections 8, 9, 10, 13, 14, 15, 16, 17, 18 and 19 and the Long Title were agreed to without amendment. Schedule 1, sections 2 and 7, schedule 3 and sections 11 and 12 were agreed as amended.

The Committee completed Stage 2 consideration of the Bill.

†536 3801 27 SEPTEMBER 2006 3802

Scottish Parliament Scottish Commissioner for Human Rights Bill: Stage 2 Justice 1 Committee

Wednesday 27 September 2006 10:30 The Convener: Agenda item 2 is day 2 of our [THE CONVENER opened the meeting at 10:30] consideration of the Scottish Commissioner for Human Rights Bill at stage 2. I welcome once again Robert Brown, the Deputy Minister for Education and Young People, and his team of officials—Jane McLeod, Matthew Lynch, Brian Peddie and Ed Thomson—who will support him.

Section 1—Scottish Commissioner for Human Rights The Convener: Amendment 149, in the name of Des McNulty, is grouped with amendments 150 to 164, 139 and 165 to 167. Pre-emptions are noted on the groupings paper. I have allocated about 15 minutes for the debate on the group; we must complete our stage 2 consideration today. Des McNulty (Clydebank and Milngavie) (Lab): As you indicated, convener, the amendments in the group are linked. The focus of the amendments is to be found in lead amendment 149, which seeks to remove the reference in section 1 to the “deputy Scottish Commissioners for Human Rights”, and makes provision for “an acting Commissioner if … the office of Commissioner is vacant, or … the Commissioner is for any reason unable to act”. The other amendments in the group serve as tidying-up amendments; they remove references to the deputy commissioners and so on. In my view, the worst argument that can be made for having deputy commissioners is that they are required to provide an acting function. In making provision for acting arrangements, I have dealt with the issue. The argument for not having a deputy commissioner role in the bill is twofold. First, having read the policy memorandum and studied the range of duties that are prescribed for deputies, I see no justification for their role—the workload is not sufficient. The minister said that the deputy commissioner positions may be part time and that having two deputy commissioners would not imply that there were three full-time posts. I appreciate that. Nevertheless, the Executive has not made the case for the posts. In the event of the bill being passed, three different commissioners will not necessarily be able to manage a greater workload than a commissioner acting with the support of staff could do.

†537 3803 27 SEPTEMBER 2006 3804

In any event, it is bad practice for the bill to responsibilities that the bill creates for a Scottish create three Crown posts. The Finance commissioner for human rights could be Committee’s report “Inquiry into Accountability and discharged without too many people joining the Governance” reflects public opinion on the public payroll. creation of tsars. One of the problems with the bill We must remember that this is a parliamentary as it is drafted is that three tsars for human appointment and that it should, therefore, be lifted rights—a commissioner and two deputy out of the hurly-burly of party politics. Whatever commissioners—will be appointed. That practice the future complexions of Parliament and has not been adopted in other legislation. It would Government, we all carry responsibility for this. I be better for the bill to create only the post of therefore commend the efforts that Des McNulty commissioner for human rights and not deputy has made to slim down and focus what the bill will commissioners, for whom there is no justification create. I will support amendment 149. in terms of workload. Mike Pringle (Edinburgh South) (LD): I am Secondly, I refer the committee to the comments sorry that, as a result of what happened last week, that John Scott made in the chamber two weeks we are again talking about a commissioner. I hope ago on the reappointment of deputy ombudsmen. that the Executive will seriously consider, at stage He said that the experience of the Scottish public 3, reverting to what we discussed last week—the services ombudsman since the passing of the idea of a commission. Scottish Public Services Ombudsman Act 2002 was that the deputy ombudsmen posts led to a I disagree with Des McNulty. The deputy lack of flexibility. The posts are not required in the commissioner posts would be part-time posts, and management structure of the ombudsman’s office. it would be important to have somebody who could The express will of the Parliament, in agreeing to be available—even on a part-time basis—to stand the Scottish Parliamentary Corporate Body’s in when the commissioner, if there was only one, motion, was that the deputy ombudsmen posts was conducting an inquiry under the power in should continue for a further year, with a view to section 5. He might be conducting a serious their abolition and replacement in due course by inquiry into one public authority or another, which staff appointments. might be taking up a considerable amount of time. After that, under section 9, he would have to write It seems to me that the experience in the a report, which would be extremely onerous and SPSO’s office is likely to be reflected in the would also take up a considerable amount of time. context of the human rights commissioner. We have an opportunity, while the bill is being While the commissioner was doing all that, considered at stage 2, to get rid of the problem or would nothing else be happening? If other issues to avoid its arising by making provision for the came to his office, it would be only right for there appointment of staff, rather than deputy to be somebody there to stand in for him who was commissioners, to work for the commissioner for able to take on the workload and the responsibility human rights. That would give maximum flexibility and who had the respect of the person who went and adaptability with regard to workload, and to the office. I think that there should be deputy would put the minimum onus on the commissioners and I will oppose Des McNulty’s commissioner’s office in making the appointments amendments. and on the SPCB and the Parliament in creating the posts. Margaret Mitchell (Central Scotland) (Con): I take the opposite view. I regret the fact that the Those are the two arguments: there is no amendment to give the functions to the Scottish workload and nothing to demonstrate that the public services ombudsman was defeated last posts are required; and the evidence from other week. However, we are where we are. offices is that the creation of deputy posts causes problems. In that context, it is better to allow for Des McNulty’s amendments are eminently the provision of staff, which amendment 149 and sensible. No case has been made for the the subsequent amendments would do. proposed number of deputes with regard to the workload that will be connected with the I move amendment 149. commissioner’s awareness-raising and promotion functions. From the experience of the Scottish Stewart Stevenson (Banff and Buchan) public services ombudsman, for whom deputes (SNP): When the convener of the Finance were created, whose abolition is now being Committee brings to us his experience, and the considered, it is clear that those functions could experience of that committee, of drawing things up and should be performed by staff. I welcome Des efficiently and effectively, we should listen McNulty’s amendments, which are sensible and carefully. I know that we, on this committee, like to constructive, and I will support them. get lots of bangs for our buck but in this case we can see lots of bucks but not many bangs. With Mr Bruce McFee (West of Scotland) (SNP): the right person in post, the modest My problem with the bill is straightforward: it is †538 3805 27 SEPTEMBER 2006 3806 neither fish nor fowl. I will be minded to support I acknowledge Des McNulty’s point that the Des McNulty’s amendments if the minister tells me climate in which we are discussing the bill is that the powers that the commission or different from the climate that has existed in past commissioner will eventually exercise under the years, because of the need to rationalise and tidy bill are how the Executive sees the situation up the number of commissions that we have, while panning out. The bill seems to propose a recognising the element of financial accountability cumbersome structure for the powers that the that goes with that. commissioner will exercise, and some powers that The Deputy Minister for Education and I would have expected to see in a proper human Young People (Robert Brown): Members have rights commissioner bill are not there. made a number of genuine and relevant points. To The problem is that we have the structure for an extent, the debate is a rehash of some of the one thing but the powers for another. Does the issues that we covered last week, albeit with a minister intend to lodge amendments at stage 3 to new set of amendments from Des McNulty to a address the powers of the commissioner to inquire rather different effect. Last week, Des McNulty into individual cases and to expand the role of wanted to appoint the deputy ombudspersons as inquiries? That would perhaps justify the structure deputy commissioners; today, he proposes to do that is proposed. At the moment, the bill is clearly away with them altogether. Although I appreciate a compromise between the two coalition parties. that he is trying to deal with some of the As a consequence, it is neither one thing nor implications of the view that he and the Finance another—it is a mess. Committee take on such matters, that shows some of the problems that we have in trying to deal with Mrs Mary Mulligan (Linlithgow) (Lab): I such issues piecemeal rather than as part of a listened carefully to Des McNulty and I think that review of the commissioners as a whole. I think he made some relevant points, especially about that that is the better way that Parliament will need the experience of the ombudsman’s office in which to take in due course. the post of deputy exists. Unfortunately, I was not here last week, but I agree with Mike Pringle: I I will deal with the commission point first. would have preferred to be discussing a Ministers will have to decide before stage 3 commission, rather than a commissioner, this whether to return to the option of establishing a morning. However, we must respond to what is in commission rather than a commissioner, which the front of us. committee rejected last week on the casting vote of the convener. The proposal was promised at I would prefer the commissioner’s office to have stage 1 and was brought forward in response to a flatter structure. That issue has been part of the the expressed view that there should be a more discussion that the minister has had with the collegiate structure to the body. It is linked very committee. I am, therefore, interested to hear from much to the issue of the strategic plan, which we the minister the reasoning behind the creation of will consider later this morning. Whether or not we the post of deputy. Given the fact that there are so return to the idea of a commission at stage 3—I few appointed positions, it seems a bit like overkill. hear the voices in favour of that—it would be a Why does the Executive still think that it is retrograde step to leave the commissioner in necessary to have deputies identified, instead of splendid isolation, without deputies, whom we enabling the commissioner to bring in people to thought could be full time, but who would more work on the relevant human rights issues as and likely be part time. when they see fit? The Convener: Perhaps the minister will 10:45 confirm that the bill provides for up to two deputies. Who would decide the number of Several other points arise. The absence of deputies? Would that decision be made in deputies could make the human rights consultation with the Scottish Parliamentary commissioner less representative of different Corporate Body or would it be a matter for the interests in society, a problem that bedevilled or commissioner? concerned the committee at stage 1. The United Nation’s Paris principles state that the plurality of Like Mary Mulligan, I would prefer the society should be reflected in the membership of commissioner’s office to have a flatter structure, the organisation. We have endeavoured to stay as was discussed at stage 1. For me, that would within those principles in the bill, but that would be be key to the operation of the body. If at any point less likely if there were a single office holder. Also, we are going to head in the direction of having a dispensing with deputies could make the commission rather than a commissioner, we need commissioner less accountable internally and to look at the members of the commission and more of a perceived single source of expertise what powers might be vested in them. externally, which I know concerns committee members. Another issue that has been touched

†539 3807 27 SEPTEMBER 2006 3808

on, although it is not the main one, is that purposes and requirements, and it will be at a removing the provision for deputy commissioners different stage in its development. I am not would probably not in practice deliver significant convinced that the proposed changes would cost savings, because the tasks that the deputies deliver meaningful improvements in the would undertake would have to be done by staff governance and accountability of the Scottish instead, so additional staff might be needed. commissioner for human rights. In some ways, they take us back to issues with which the We are conscious of the Parliament’s recent committee was concerned earlier. decision not to reappoint deputy Scottish public services ombudsmen beyond a further year. On the other hand, some of the aspects that However, that does not mean that having deputy have been raised have merit. One reason why the ombudsmen is now thought to have been a Parliament reconsidered the appointment of mistake at the beginning of the office’s existence. deputy Scottish public services ombudsmen was In seeking the Parliament’s agreement to the the concern that having several Crown appointees decision, the Scottish Parliamentary Corporate in a relatively small office might be somewhat top Body recognised expressly the valuable role that heavy. A case could be made for revisiting the the deputy ombudsmen have fulfilled in getting the issue and considering whether the deputy SPSO’s office up and running. It is important to commissioners for human rights could be stress that the deputy ombudsmen’s main initial appointed by the SPCB. That point was taken on role was to assist the ombudsman in establishing board in the proposed new schedule that would her office by providing knowledge and expertise of have proceeded in the direction of a commission. particular sectors. That was against the We want to revisit that, because it is not necessary background of the arrangements that were being to appoint deputy commissioners through the put in place to unify several functions. panoply of Crown appointments. I am more than happy to consider that further. Deputy commissioners for human rights could make a similar contribution, at least in the short I am not certain that Des McNulty’s amendments term. It is sensible to give the Parliament the in the group address properly all the consequential option to decide whether to appoint deputy effects of deleting the provision on appointing commissioners, probably following consultation deputies. Nor am I certain that there would be no with the commissioner. As has been said, the undesirable practical effects. I want to consider power is a permissive one that will allow up to two that in detail. In short, I would like to consider the deputy commissioners to be appointed. The comments that have been made about the Parliament would not have to appoint deputy structure. Some of them have merit, but we want commissioners, but it is important to have the to consider their implications. We also want to flexibility of an option to do so, particularly during consider what to do about the idea of having a the establishment of the office and against the commission rather than a commissioner. I hope background of the wider role or remit for the senior that against that background, and bearing in mind body, whether or not we have a commissioner. that we are seeking the best governance That would be a decision for Parliament to make in arrangements for the SCHR, Des McNulty will be the light of the prevailing circumstances, whereas prepared to withdraw amendment 149. Des McNulty wants to rule out the option Further issues arise from what members have completely from the outset. said in the debate. Bruce McFee made an On a point of detail, it is important to note that interesting point about setting up the structures for amendments 158 and 164 would go further than one body but providing the powers for another. I the existing provisions in the bill and the do not agree with him on that. The structure that equivalent provisions in the Scottish Public will be in place will enable the commissioner to do Services Ombudsman Act 2002 by restricting many important things to promote and propagate appointment as acting commissioner to members human rights and to deal with inquiries. The power of the commissioner’s staff. Des McNulty rightly of inquiry is quite wide ranging and can involve a included provision for that eventuality but, under series of issues around the practices and the bill at present and the 2002 act, any person operation of Scottish public authorities. That power could undertake the role. Members of staff might is not trivial, and the committee has made it clear well assume that role, but there is a need for that it wants to operate it within a structure. The flexibility and an ability to deal with the situation deputy commissioner, if we have the appropriately and as the circumstances warrant. commissioner structure rather than the commission structure, will provide a bit of balance Des McNulty and committee members have and breadth to the arrangement that would not made several interesting points, but it is important otherwise be there. to say that the office of the commissioner for human rights will be different from that of the Mary Mulligan and other members spoke about public services ombudsman, with different having a flatter structure. What we propose is not

†540 3809 27 SEPTEMBER 2006 3810 particularly onerous, especially if we think in terms will be advocacy. A skilled public relations person of part-time appointments, flexibility and or advocate might be required, but they need not Parliament’s ability to decide whether to have the necessarily be a lawyer. Different skills might be deputies in the light of experience and discussion. required. We should allow for flexibility not by having deputy commissioner posts, but by The SPCB is central to the implementation allowing the commissioner to work out his or her arrangements. I am sure that, in its decisions, the plan and strategy, to identify the workload that corporate body will reflect on the conversations needs to be handled and to appoint staff that have taken place throughout the passage of accordingly, subject to the approval of the SPCB the bill. We expect the SPCB to consult and take and based on the strategic plan. That would give guidance from the commissioner if the the SPCB a much more significant and appointment goes ahead. appropriate role than the minister proposes. If we The issue of staff requirements and the role of specify in legislation the appointment of two the deputy commissioners would be taken on deputy commissioners, it will be difficult for the board in that context. My plea to the committee is SPCB to argue in principle about the appointment to leave the flexibility in the bill—to leave the of those posts and it will not be able to have a options available—on the understanding that genuine debate about the workload. some of the practical implications for Crown The fundamental point is that the bill asks us to appointments and governance arrangements will appoint three additional commissioners when the be returned to. We would like to look into those Finance Committee has argued strongly for a arrangements a bit more. I hope that the moratorium on such appointments. I appreciate committee will not agree to Des McNulty’s that the minister disagrees with me about the proposal to delete the references to deputy commissioner for human rights. To be seen to commissioners from the bill. argue for the commissioner plus two deputy The Convener: I want to be sure about this commissioners compounds his problem and I seek matter before we vote. It is a matter for the to extract him from that situation. corporate body, albeit in consultation with the The minister said that the commissioner would Scottish commissioner for human rights, whether be unable to deal with his responsibilities under to appoint any deputies. It does not have to do so. the Paris principles if he were left on his own. The Robert Brown: That is absolutely right. It also relevant point is that the Scottish public services has powers over staff numbers and conditions, as ombudsman has made it clear that she can meet we discussed last week. her responsibilities under the Paris principles without deputy commissioners, so I do not see Des McNulty: I appreciate the minister’s why the commissioner for human rights would be difficulty in having to argue for a bill that he does unable to do so. not necessarily believe in. Many members of the If, as many committee members agree, we need committee are in the same situation. The minister a flatter structure, the logic of that position is not to argued for a commission approach but, as a result approve the deputy commissioner posts. Given of the position that was taken last week, we are where the bill is, there are strong arguments for left with a bill for a commissioner. I can try to my amendment 149, which I will press. amend only the bill that is in front of me and the minister can discuss only the bill that is in front of The Convener: The question is, that him. amendment 149 be agreed to. Are we agreed? The case that I have made for not having deputy Members: No. commissioners seems to be strong. Nothing has The Convener: There will be a division. demonstrated that there would be sufficient FOR workload to warrant two additional commissioner McFee, Mr Bruce (West of Scotland) (SNP) posts. There is nothing in the policy memorandum Mitchell, Margaret (Central Scotland) (Con) to indicate that, and there is nothing in the bill’s Stevenson, Stewart (Banff and Buchan) (SNP) scope that positively makes the case. AGAINST Mike Pringle mentioned nothing happening Glen, Marlyn (North East Scotland) (Lab) should the commissioner be otherwise occupied. McNeill, Pauline (Glasgow Kelvin) (Lab) That point is spurious—if that were the case, the Mulligan, Mrs Mary (Linlithgow) (Lab) Scottish public services ombudsman would not Pringle, Mike (Edinburgh South) (LD) have been quite so keen to go down the route that The Convener: The result of the division is: For she suggested. She is not suggesting that nothing 3, Against 4, Abstentions 0. will happen if she is engaged on a particular task. Amendment 149 disagreed to. My suggestion is that there should be a Section 1 agreed to. commissioner with a specialist task, part of which

†541 3811 27 SEPTEMBER 2006 3812

Schedule 1 be considered without dictating any particular solution before specific and costed options are SCOTTISH COMMISSIONER FOR HUMAN RIGHTS considered. Amendments 150 to 153 not moved. Co-location may not be the only or best option, The Convener: Amendment 133, in the name of although, as I explained at last week’s meeting, the minister, is grouped with amendments 134 to we have taken steps to make it a viable option for 137, 131, 138, 132 and 140 to 142. the SPCB to consider. In any event, the question is one of the effective, economic and efficient use Robert Brown: The Executive amendments in of resources rather than just the “benefit” to the the group will implement commitments that the commission, which is the term used in Des Executive gave at stage 1. They take into account McNulty’s amendment. I respectfully suggest that the committee’s concerns at stage 1 and issues our amendment 136 is more focused, although that the Procedures Committee and the Finance obviously I do not disagree with the thrust of what Committee raised about commissioners generally. Des McNulty is trying to do. Members will be aware that we have taken such matters on board where possible. The Amendment 137 is consequential on Des amendments will make significant improvements McNulty’s amendment 123, which was debated to the architecture of the proposals, by which I last week. I would like to talk briefly about mean how the commissioner will relate to amendments 123, 125 and 126. I undertook at Parliament and the structures in which the stage 1 to lodge amendments to remove the commissioner will do his or her work. statutory requirement for the SCHR to have a chief executive. Those changes were contained in the Amendment 133 sets out the grounds on which new schedule 1 that we proposed in amendment the commissioner can be dismissed and provides 2, which was withdrawn following last week’s that a parliamentary motion for dismissal of the decision on the commission issue. Amendments commissioner will require support from at least two 123, 125 and 126, which were lodged by Des thirds of those who vote. Both those elements McNulty, who got ahead of us, were debated last reflect the recommendation of the Procedures week and achieve the same effect. I propose to Committee in its report on Crown appointments. support them and ask the committee to do so too. That issue has arisen in discussion about other commissioners. Amendment 138 reflects our agreement to remove the requirement that the chief executive Amendments 134 and 140 change references to be the accountable officer. Instead, the the commissioner and deputy commissioners parliamentary corporation will be required to receiving a “salary” to “remuneration”. That will designate the commissioner, a deputy reflect the fact that they will not be employees of commissioner or a member of the commissioner’s the Parliament or the Crown. staff as the accountable officer. Amendment 135 removes the provision in Des McNulty’s amendments 127 to 129 would paragraph 4 of schedule 1 that prevents the make the commissioner the accountable officer. I commissioner and deputy commissioners from explained last week that I have significant holding other offices or employment without the reservations about that proposal, which I still parliamentary corporation’s consent. Arguably, the believe should not be specified in statute. In removal is not strictly necessary, but it is proposed particular, amendment 129 would remove the to avoid any implication that the post of obligation on the accountable officer to notify the commissioner or deputy commissioner will be Auditor General if he or she were required to act in expected to be a full-time appointment as a matter a way that was inconsistent with his or her of course. The time commitment that is expected obligations. That is an integral part of an of the commissioner and deputy commissioners accountable officer’s function of ensuring financial will, of course, be for the Parliament—specifically, regularity and propriety. I am sure that the the corporate body—to determine. committee has come across it before, and a provision similar to paragraph 12(3) in schedule 1 11:00 appears in the Scottish Public Services Amendment 136 introduces a new sub- Ombudsman Act 2002. paragraph that states that the commissioner must Amendment 138 provides a much more flexible “have regard to the desirability of sharing premises with alternative to Des McNulty’s amendments, giving another public body“ the parliamentary corporation the power to designate whom it believes to be the most when determining the location of his or her office appropriate person as the accountable officer and premises. Compared with Des McNulty’s setting in place the appropriate checks and amendment 131, I believe that that strikes the right balances. balance by ensuring that co-location options will

†542 3813 27 SEPTEMBER 2006 3814

Amendment 141 adds a new explicit If the person who was appointed to act as the requirement for the SCHR to submit its proposed accountable officer by or through the annual budget to the parliamentary corporation for commissioner found any inappropriate approval. That delivers our commitment at stage 1 expenditure, it would be difficult for them to report in response to the requests made by the Finance that, given that they would be reporting on Committee, the Justice 1 Committee and the someone to whom they in turn were accountable. SPCB. The proposed arrangement in my amendments Des McNulty has also included provisions 127 to 129 is the more coherent option. In fact, the regarding the approval of the SCHR budget in arrangement is the one that replicates most amendment 132. However, the amendment would closely the practice that has been put in place for not require the SCHR to submit budget proposals other commissioners and ombudsmen. The by a date specified by the SPCB, as Executive argument that the minister put forward does not amendment 141 would. In addition, amendment appear to be financially sound. 132 would not leave the SPCB any discretion to I turn to amendment 131, which addresses the pay at least some of the commissioner’s costs if sharing of services and resources, and represents the budget were not finally agreed. For example, if the approach that the Finance Committee discussion of even small budget items—a considers to be good practice. The parliamentary facetious example would be the number of corporation and the commissioner should be paperclips—remained on-going at the start of the placed under a duty to consider shared services financial year, the SPCB would have no choice but and resources. Historically, the commissioners to withhold all payments to the commissioner. In and ombudsmen have been good at saying that other words, the SPCB would shut down the they do that, but the practice has been less good. commissioner. That would have implications for The point at which a body is created is a crucial staff salaries and other payments that the time for such a duty to be placed on the SPCB and commissioner was contractually obliged to make. the body; it should be in the legislation. By Executive amendment 141 gives the parliamentary including the duty in the bill, we would clearly corporation more flexibility, but at the same time is demonstrate that we were pointing the unambiguous that Parliament retains ultimate commissioner in the direction of good practice. control of the budget, in line with the direction that That is what the Finance Committee said in its we have moved in as we have considered the report “Inquiry into Accountability and governance arrangements for the commissioner. Governance”. Only in that way will real savings be Amendment 142 removes the definition of the achieved. If the parliamentary corporation commissioner’s financial year, as that is made subsequently decides that the commissioner redundant by the inclusion of the information in should share services and resources, it will be amendment 141. more difficult to realise the full benefits. I move amendment 133. Stewart Stevenson: If the committee was persuaded to support your amendments 131 and The Convener: As you probably noticed, 132, would it also be proper to support any of the minister, I allowed you quite a lot of flexibility in amendments in the group in the minister’s name? referring to amendments that we have previously debated, but your comments were relevant. Des McNulty: We all want to get an Des McNulty: I am pleased that the Executive is amalgamation of what is contained in my taking on board my proposal to remove the amendments and what the minister is saying. The requirement for the unnecessary post of chief second sub-paragraph in amendment 132 reflects executive. the idea that, if the SPCB receives an unsatisfactory budget bid, it can refer the matter I turn to the points that the minister made on the back to the commissioner. That is the appropriate accountable officer. The Finance Committee has way of dealing with such a situation. The wording considerable concern that the current of that sub-paragraph is not to be found in the arrangements for accountability in Audit Scotland minister’s proposal. If the committee were to agree allow the Auditor General to appoint the board and to my amendment 132, that would be helpful. You simultaneously act as the accountable officer. The could then ask the minister to tidy things up by circularity of those arrangements seems to be incorporating into the provisions in amendment replicated in the bill. The staff, the deputy 132 anything he thinks is required from his commissioners and the commissioner would have amendment 141. a significant role to play in the appointment of the accountable officer. It would therefore be Mrs Mulligan: I listened to what the minister dangerous to separate out the role of accountable and Des McNulty said on the issue of the officer from that of the commissioner. For the accountable officer. As a member of the Audit commissioner to act as the accountable officer Committee, I recognise the value of the role of gives clarity on where accountability rests. accountable officer. At first, I thought that having

†543 3815 27 SEPTEMBER 2006 3816

the commissioner as the accountable officer was to say more about what the other commissions the most appropriate option. However, I then should be doing. It would be a shame if all the thought back to my experience in a local authority, responsibility lay with the SCHR. The Parliament where another member of the executive body and cannot just say, “This is what we think, but go on not the chief executive was the accountable and do what you want.” The buck has to stop officer. Both options can work. I ask both the somewhere, and we have a responsibility to force minister and Des McNulty to say something further the sharing of costs among commissioners and about why their proposal is superior. Both clearly those who are charged with similar duties, whether encompass the option of having the commissioner they be the SPSO or the office of the Great Britain act as the accountable officer, but the minister’s commission for equality and human rights that will amendment 138 leaves the matter open and I operate in Scotland. Will there be any scope at wonder why he thinks it important to do that. stage 3 to comment on the duty of the other Mike Pringle: The committee discussed the commissions that we fund to talk to one another question of a chief executive at some considerable and the SCHR about co-location and the sharing length, and we agree with Des McNulty and the of costs? minister that the SCHR does not need one. The question of the office’s location should be 11:15 reasonably flexible and left up to whatever we are Mrs Mulligan: When Mike Pringle raised the left with in the end, whether that is a commission issue of the sharing of offices, it triggered or a commissioner. The commissioner might well something in my memory from the committee’s try to agree to a co-location, but Des McNulty has discussions. There are merits—both financial and implied that people have not been very good at in relation to the workload—in sharing offices. sharing offices. I am not sure that that is a good However, I appreciate that we might not be able to reason for saddling the new body with an take a decision about that at this stage because of obligation to share. Sharing is a good idea, but the the position in which we find ourselves. location of the office must be left as flexible as possible, so I support the minister’s amendment I remember our discussions about whether the 136, because it allows for that flexibility. Scottish commissioner for human rights should share an office with the Scottish public services The Convener: I want to deal with the question ombudsman or the commission for equality and of whether there should be a chief executive. If I human rights that Westminster will set up. The recall rightly, the stage 1 report shows that the CEHR will have an office in Glasgow and the committee was unanimous in its view that the ombudsman is based in Edinburgh, so the new SCHR should be a small body that would not commissioner will not be able to share space with require a chief executive because that would lead both bodies. If we are committed to the idea of to a very top-heavy organisation. sharing space, the issue remains to be resolved. It We also had questions about the budget being is right to leave the flexibility to determine the most eaten up by staff, deputy commissioners and a appropriate location with the commissioner. chief executive, and we were concerned that there However, when that decision is made, the would not be a lot left in the budget for the Parliament should take a view on it. The Executive commissioner to fulfil their function. That is in our amendments would probably allow that to happen. stage 1 report, and it was a fundamental reason Margaret Mitchell: On amendment 131, I am why we believed that a chief executive was not persuaded that the sharing of services and necessary. resources is a sensible way forward in the current When he replies to the debate on this group of situation, which is far from ideal. Reference has amendments, can the minister confirm whether the been made to proposals that were discussed but human rights commissioner could still appoint a not properly considered at our meeting last week. chief executive if the Executive amendments were agreed to? I want to be clear about that. As I said, Amendment 132, which would require the we did not want a top-heavy organisation with a commissioner to submit an annual budget and commissioner, deputy commissioners and a chief which contains other provisos, would build executive because there would then be four sufficient safeguards into the system in the context people who thought that they represented the of financial accountability, so I am happy to organisation; we want a flatter structure. It is not support it. just about an accountable officer, but I would be I seek clarification on amendment 138. Would it concerned if the minister told me that the rule out the creation of the post of chief executive? commissioner could still appoint a chief executive if the amendments were agreed to. Marlyn Glen (North East Scotland) (Lab): It is unfortunate that our discussion on an important bill I am beginning to take a stronger view about co- is concentrating on administrative detail. I do not location. I wonder whether there is scope in the bill dispute that we should consider financial

†544 3817 27 SEPTEMBER 2006 3818 accountability and controls, but I am concerned “have regard to the desirability of sharing premises with that such matters are overshadowing the another public body.” substance of the bill. The convener said that the I understand that that is exactly what happened buck must stop somewhere, but it is regrettable with the Scottish information commissioner, but he that the buck stops with the proposed human decided on his own initiative to go to St Andrew’s rights body. and told the corporate body that it could not Last week, it seemed that there was movement prevent him from doing that. Amendment 136 in the Executive to review the whole set-up around would allow the same thing to happen again, commissioners. We cannot ask one body to which is why I argue strongly for amendment 131, consider co-location without considering the other which I have lodged as a substitute. bodies, too. The sharing of services and premises I think that the minister’s amendment 137 would depends on many factors, such as leases and allow the commissioner to appoint a chief people’s contracts. We are in danger of tying executive. The commissioner would be unwise to things up instead of waiting and dealing with the do so, bearing in mind the discussions that have whole system properly later. I would appreciate taken place in the committee but, to give an comment from the minister on the Executive’s example, the commissioner for children and young intentions in that regard. people appointed one for her office. If the Des McNulty: Convener, may I respond to two committee’s intention is to rule out the questions that members asked about the appointment of a chief executive, I suggest that it amendments that I lodged? not agree to amendment 137, which would allow one to be appointed. The Convener: Yes. Robert Brown: Many points have been raised, Des McNulty: On Mary Mulligan’s point, the but I endorse Marlyn Glen’s point that members normal pattern in local authorities is for the chief are trying in the bill to deal with a series of issues executive to be the accountable officer. However, to do with other commissioners. That is not a specified individual—it is normally the director of possible, which is why, in the context and in the finance—might be the accountable officer for lee of the Finance Committee’s report, the particular areas of responsibility to do with their Procedures Committee’s report and the reports post. Had we been going to appoint a chief that are still to come from Lorne Crerar and others, executive, it might have been appropriate to there will be a debate—which will obviously now include the duties of an accountable officer in the be in the next parliamentary session—about the remit of that post. direction of travel on those issues. I am concerned that the Executive’s approach Incidentally, I do not think that it would be would create the potential for the accountable possible, in the bill, to place co-location duties on officer to be a person other than the other bodies. That is a matter for others to decide commissioner, without the post being defined in and it would, it seems to me, be outwith the scope the necessary way. Also, the person could be of a bill that deals with the Scottish commissioner accountable to the commissioner for that aspect of for human rights. their work. That would be bad practice, to which the committee should not consent. The default It is entirely right that that we are simply position, which operates in all the other removing the requirement on the commissioner to commissioner contexts, is that the commissioner appoint a chief executive. That will be left flexible, is the accountable officer and accountability to the but any such appointment would be subject to the Parliament is exercised through the SPCB. That corporate body’s approval of staff appointments seems to me the correct architecture of and, in the context of parliamentary debates on accountability and there is a defect in what the the matter, it is not likely that such an appointment minister proposes. would be the corporate body’s direction of travel. However, as on other matters, the issue is the On amendment 136, locational decisions should need for flexibility: circumstances may change and not be for the commissioner. The commissioner new issues may emerge in the future, and it is may have views on location and what services it appropriate that we leave flexibility of operation— would be appropriate to share, but the bearing it in mind that the appointment of staff and responsibility for making such decisions, based on their terms and conditions are matters for the advice, should be with the SPCB. corporate body’s approval. In a variety of respects, The minister’s amendment 136 says that the the corporate body stands at the fulcrum of commissioner must ensure decisions on a number of such issues. “efficient and effective use of … resources” A number of points were made about the accountable officer provisions. Again, the issue is and flexibility. We are not saying that the accountable

†545 3819 27 SEPTEMBER 2006 3820

officer should be a particular person; we are McNulty’s approach to the issue is quite right, but saying, rather, that that is a matter for the if that is the direction of travel that he favours, I will corporate body to determine. I entirely reject Des be more than happy to lodge an appropriate McNulty’s point that there is circularity in the amendment at stage 3. That amendment will proposed arrangements. The accountable officer probably be similar to the amendment that we would be designated by the corporate body, not by have lodged in respect of co-location. There must the commissioner, so there is no circularity or be flexibility, and it is not always appropriate to conflict of interest. It may be appropriate to appoint share services. I am not sure that there is a need the commissioner as accountable officer, or it may for the commissioner to consult bodies that are be appropriate to appoint somebody else; it is specified by the SPCB; rather, the commissioner appropriate to leave that flexible against the should, in the protocols that he establishes with background of possible changes in the way in other bodies, seek to identify whether there is which accountability mechanisms are dealt with scope for sharing services. We should place a more broadly. I am no expert on those duty on the commissioner to put that at the centre mechanisms, but I urge the committee to allow of his work. that flexibility. The Convener: Will you consider discussing Similar considerations apply to the with ministers who have lead responsibility for commissioner’s budget. We could try to other commissioners the issue of sharing costs micromanage the matter to an extreme degree— and premises? Off the top of my head, I cannot we are at some risk of doing that. The Executive’s remember which ministers have those proposals on the budget require that the corporate responsibilities. We are discussing the bill in body approve the budget. I am advised that that isolation and regardless of whether they support implies interchange between the SPCB and the your position or Des McNulty’s position, members commissioner—the potential for the SPCB to go are fairly united in believing that we must sort out back to the commissioner to say “We do not like the issue. It happens that we have an opportunity this, so what about that and what about the to do that now. You cannot give us a commitment other?” and for there to be appropriate exchanges. on anything other than what is in the bill, but other That does not need to be spelled out in the ministers have overarching responsibility for other detailed way that Des McNulty’s amendment 132 commissions. Are you willing to discuss the matter suggests. with those ministers before stage 3, so that you can provide us with an indication of how other In addition, the requirement in new commissioners may feed into this agenda? subparagraph (3) that would be inserted by amendment 132, that payments should not be Robert Brown: I will respond to those made in respect of a particular year until the comments, although I also want to make a point budget has been approved if there is an on-going about the location of the body. I am entirely in minor dispute about the budget, is too inflexible in agreement with the committee’s direction of travel practical terms. The corporate body is a on the issue. At a very early stage in the responsible body that is endowed with a number committee’s consideration of the bill, I said that of functions by Parliament. The bill will also endow efficiencies in public services are important—other it with a number of functions. We should leave it to ministers have made the same point. However, the corporate body to deal with such matters in the majority of the other commissioners are detail. appointed by Parliament and are not subject to the jurisdiction of ministers per se. Although there may The convener suggested that the be situations in which the use of services that the commissioner’s budget would be eaten up by staff Executive provides for other purposes could be costs. Members should bear it in mind that a good examined, the position of commissioners is really deal of the commissioner’s work will be done by a matter for discussion with other commissioners, the commissioner and the deputy commissioners, rather than with ministers. as well as by staff. The commissioner and the deputy commissioners may conduct inquiries or be The Convener: If that is the case, you have just involved in promoting the importance of human illustrated the problem: we have no control and it rights. It is somewhat artificial to distinguish is for the commissioners to determine whether between the staff costs of those individuals and they will co-operate. the staff and other costs of the body as a whole. Robert Brown: To some extent, that is correct My next point relates to the question of sharing with regard to the other commissioners. The services. I intended to indicate that initially we obligations that we will place on the Scottish were rather sympathetic to the suggestion that commissioner for human rights are much more services should be shared, because that is an stringent than those that we have placed on other area in which the power of the corporate body commissioners. We cannot deal with those other could be strengthened. I do not think that Des commissioners in the bill.

†546 3821 27 SEPTEMBER 2006 3822

The Convener: That is why I am trying to nail direction on the location. However, I said that I you down before we vote on the amendments. was happy to consider for stage 3 the issue of You are right to say that it is a bit unfair for us to sharing services. That will almost certainly be try to resolve the matter in the bill when, clearly, another issue that relates to the corporate body, we need to get other bodies that Parliament has given that it has powers to approve staff, salaries created to co-operate in sharing services. You are and other matters. now saying that that is a matter for the other Stewart Stevenson: So you give the commissioners. commitment that, by the end of the bill process, Robert Brown: I am saying that we have you will have supported the corporate body to established the other commissioners, which have have the power to give direction on sharing and their own structures. More important, they are location. subject to the jurisdiction not of ministers but of Robert Brown: I have said that I would like to Parliament. I am happy to discuss the matter with consider the phraseology, but that I will return at other ministers where it is relevant to do so, but in stage 3 to the direction of travel on making the this context we are dealing with other bodies. The sharing of services effective. corporate body is the unifying force that has the power to push the issue in discussions. Through Stewart Stevenson: I want to be clear about the amendments, we will place specific and the destination and not simply the compass point stringent obligations on the Scottish commissioner that we happen to be heading on. for human rights to deal with such matters. As I Robert Brown: The issue is the phraseology. said, I am happy to consider the issue of sharing We have said that the determination of locus is services, which is important. subject to approval by the parliamentary However, I do not think that we can do much corporation. It is likely that such phraseology more in the bill. Facilities in other parts of the would be used to refer to services, but we would Executive for matters such as payroll and also want to place a duty on the commissioner to information technology provision might be used. I have regard to efficiency and other matters in the am certainly happy to examine the potential for use of services. that. That is important, but it is not a matter for the Stewart Stevenson: Just to be absolutely clear, bill. are you saying that you would support the corporate body having the power to direct or the 11:30 power of veto until it received the answer that it wanted? We stress co-location. I echo the discussion that has taken place about the possible location of the Robert Brown: Absolutely. GB commission, the ombudsman’s possible Margaret Mitchell: I will comment on the outreach presence in that commission’s Glasgow minister’s response. Throughout stage 1, we were office and options that relate to that. We should concerned about the amount of money that was keep options as wide open as we can so that the involved and about the lack of efficiency in the corporate body has clear and effective options and monster that would be created to perform the is not presented with a fait accompli, as might limited functions of awareness raising and have happened before. That is very much the promotion—it cannot have the power to consider direction of travel and I am sure that the corporate individual cases. Given that, I am more than body will listen carefully to the comments that disappointed that at stage 2—a fairly detailed have been made today. stage in the legislative process—the minister is Members should bear it in mind that the bill only now addressing sharing of services. If you do contains an obligation for the corporate body to not mind my saying so, minister, that is indicative approve the location. When that is taken with our of how the Executive has approached the bill from amendments to deal with the commissioner’s the beginning. duties on location, we go very much towards what The Convener: Margaret—we are asking only we want. for clarification at this stage. I will re-examine the services issue—that is an Margaret Mitchell: The committee made it clear important point that I meant to make initially—and that the proposed structure was top heavy and I will consider issues with other ministers. that it did not want a chief executive, yet I Stewart Stevenson: I have a question as a understand that the minister is saying that result of my shortcomings in reading. What although his amendments look as though they provision says that the corporate body can direct would abolish the chief executive, they would not sharing? do that—they would create flexibility and ambiguity. Will he confirm that that is not Robert Brown: I said not that the corporate straightforward and does not reflect the body could direct sharing but that it could give committee’s will? †547 3823 27 SEPTEMBER 2006 3824

The Convener: The minister has the last word. The question is, that amendment 135 be agreed to. Are we agreed? Robert Brown: I have dealt with the point already. For what it is worth, no amendment has Members: No. been lodged to prohibit the commissioner for The Convener: There will be a division. human rights from having a chief executive. FOR However, it is clear that that will not happen in the light of the debate and the amendment to withdraw Glen, Marlyn (North East Scotland) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) the requirement to have a chief executive. The Mulligan, Mrs Mary (Linlithgow) (Lab) matter is for the corporate body and checks and Pringle, Mike (Edinburgh South) (LD) balances are in place. To be frank, I think that we ABSTENTIONS should leave the position reasonably flexible for the corporate body’s determination. That is where McFee, Mr Bruce (West of Scotland) (SNP) Mitchell, Margaret (Central Scotland) (Con) I leave the matter with the committee. Stevenson, Stewart (Banff and Buchan) (SNP) Des McNulty’s amendments would not prohibit The Convener: The result of the division is: For the appointment of a chief executive. Perhaps, like 4, Abstentions 3. me, he accepts that an element of flexibility on such matters must be retained. Amendment 135 agreed to. The Convener: The question is, that Amendments 156 to 164 not moved. amendment 133 be agreed to. Are we agreed? Amendment 122 not moved. Members: No. Amendment 136 moved—[Robert Brown]. The Convener: There will be a division. The Convener: The question is, that FOR amendment 136 be agreed to. Are we agreed? Glen, Marlyn (North East Scotland) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Members: No. McNeill, Pauline (Glasgow Kelvin) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) The Convener: There will be a division. Pringle, Mike (Edinburgh South) (LD) FOR ABSTENTIONS Glen, Marlyn (North East Scotland) (Lab) Mitchell, Margaret (Central Scotland) (Con) McNeill, Pauline (Glasgow Kelvin) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) The Convener: The result of the division is: For Pringle, Mike (Edinburgh South) (LD) 5, Abstentions 1. AGAINST Amendment 133 agreed to. McFee, Mr Bruce (West of Scotland) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Amendment 154 not moved. ABSTENTIONS Amendment 134 moved—[Robert Brown]. Mitchell, Margaret (Central Scotland) (Con) The Convener: The question is, that The Convener: The result of the division is: For amendment 134 be agreed to. Are we agreed? 4, Against 2, Abstentions 1. Members: No. Amendment 136 agreed to. The Convener: There will be a division. Amendment 123 moved—[Des McNulty]. FOR The Convener: The question is, that Glen, Marlyn (North East Scotland) (Lab) amendment 123 be agreed to. Are we agreed? McFee, Mr Bruce (West of Scotland) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) Members: No. Mulligan, Mrs Mary (Linlithgow) (Lab) Pringle, Mike (Edinburgh South) (LD) FOR Stevenson, Stewart (Banff and Buchan) (SNP) Glen, Marlyn (North East Scotland) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) ABSTENTIONS McNeill, Pauline (Glasgow Kelvin) (Lab) Mitchell, Margaret (Central Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Mulligan, Mrs Mary (Linlithgow) (Lab) The Convener: The result of the division is: For Pringle, Mike (Edinburgh South) (LD) 6, Abstentions 1. Stevenson, Stewart (Banff and Buchan) (SNP) Amendment 134 agreed to. The Convener: The result of the division is: For 7, Against 0, Abstentions 0. Amendment 135 moved—[Robert Brown]. Amendment 123 agreed to. The Convener: If amendment 135 is agreed to, amendment 155 will be pre-empted. Amendment 137 moved—[Robert Brown].

†548 3825 27 SEPTEMBER 2006 3826

The Convener: If amendment 137 is agreed to, Members: No. I cannot call amendment 124. The Convener: There will be a division. The question is, that amendment 137 be agreed FOR to. Are we agreed? Glen, Marlyn (North East Scotland) (Lab) Members: No. McFee, Mr Bruce (West of Scotland) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) The Convener: There will be a division. Mulligan, Mrs Mary (Linlithgow) (Lab) Pringle, Mike (Edinburgh South) (LD) FOR Stevenson, Stewart (Banff and Buchan) (SNP) Glen, Marlyn (North East Scotland) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) ABSTENTIONS McNeill, Pauline (Glasgow Kelvin) (Lab) Mitchell, Margaret (Central Scotland) (Con) Mulligan, Mrs Mary (Linlithgow) (Lab) Pringle, Mike (Edinburgh South) (LD) The Convener: The result of the division is: For Stevenson, Stewart (Banff and Buchan) (SNP) 6, Against 0, Abstentions 1. ABSTENTIONS Amendment 138 agreed to. Mitchell, Margaret (Central Scotland) (Con) Amendment 139 moved—[Des McNulty]. The Convener: The result of the division is: For The Convener: The question is, that 6, Against 0, Abstentions 1. amendment 139 be agreed to. Are we agreed? Amendment 137 agreed to. Members: No. Amendments 125 and 126 moved—[Des The Convener: There will be a division. McNulty]—and agreed to. FOR Amendment 131 moved—[Des McNulty]. McFee, Mr Bruce (West of Scotland) (SNP) The Convener: The question is, that Mitchell, Margaret (Central Scotland) (Con) amendment 131 be agreed to. Are we agreed? Stevenson, Stewart (Banff and Buchan) (SNP) Members: No. AGAINST Glen, Marlyn (North East Scotland) (Lab) The Convener: There will be a division. McNeill, Pauline (Glasgow Kelvin) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) FOR Pringle, Mike (Edinburgh South) (LD) McFee, Mr Bruce (West of Scotland) (SNP) Mitchell, Margaret (Central Scotland) (Con) The Convener: The result of the division is: For Stevenson, Stewart (Banff and Buchan) (SNP) 3, Against 4, Abstentions 0. AGAINST Amendment 139 disagreed to. Glen, Marlyn (North East Scotland) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) 11:45 Pringle, Mike (Edinburgh South) (LD) Amendments 128 and 129 not moved. The Convener: The result of the division is: For Amendment 132 moved—[Des McNulty]. 3, Against 4, Abstentions 0. The Convener: The question is, that Amendment 131 disagreed to. amendment 132 be agreed to. Are we agreed? The Convener: Amendment 138 in the name of Members: No. the minister has been debated with amendment 133. If amendment 138 is agreed to I cannot call The Convener: There will be a division. amendment 127. FOR Amendments 138 and 139 are direct McFee, Mr Bruce (West of Scotland) (SNP) alternatives. If amendment 138 is agreed to, Mitchell, Margaret (Central Scotland) (Con) amendment 139 will become an amendment to Stevenson, Stewart (Banff and Buchan) (SNP) leave out the words that will be inserted by AGAINST amendment 138 and replace them with the words Glen, Marlyn (North East Scotland) (Lab) that would be inserted by amendment 139. Is that McNeill, Pauline (Glasgow Kelvin) (Lab) all clear? Mulligan, Mrs Mary (Linlithgow) (Lab) Pringle, Mike (Edinburgh South) (LD) Mr McFee: That is clear. [Laughter.] The Convener: The result of the division is: For Amendment 138 moved—[Robert Brown]. 3, Against 4, Abstentions 0. The Convener: The question is, that Amendment 132 disagreed to. amendment 138 be agreed to. Are we agreed?

†549 3827 27 SEPTEMBER 2006 3828

Amendment 140 moved—[Robert Brown]—and Information (Scotland) Act 2002. In her evidence agreed to. at stage 1, the ombudsman specifically asked for confirmation that the SCHR would fall within her Amendment 165 not moved. remit. Amendment 141 moved—[Robert Brown]. I move amendment 143. The Convener: The question is, that The Convener: The question is, that amendment 141 be agreed to. Are we agreed? amendment 143 be agreed to. Are we agreed? Members: No. Members: No. The Convener: There will be a division. The Convener: There will be a division. FOR FOR Glen, Marlyn (North East Scotland) (Lab) Glen, Marlyn (North East Scotland) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) McFee, Mr Bruce (West of Scotland) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) Pringle, Mike (Edinburgh South) (LD) Pringle, Mike (Edinburgh South) (LD) Stevenson, Stewart (Banff and Buchan) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) ABSTENTIONS ABSTENTIONS Mitchell, Margaret (Central Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) The Convener: The result of the division is: For The Convener: The result of the division is: For 6, Against 0, Abstentions 1. 6, Against 0, Abstentions 1. Amendment 141 agreed to. Amendment 143 agreed to. Amendment 142 moved—[Robert Brown]. Schedule 1, as amended, agreed to. The Convener: The question is, that amendment 142 be agreed to. Are we agreed? Section 2—General duty to promote human rights Members: No. The Convener: Amendment 5, in the name of The Convener: There will be a division. the minister, is grouped with amendments 104, 6, FOR 7, 7A and 144. I draw the committee’s attention to Glen, Marlyn (North East Scotland) (Lab) the fact that amendment 5 pre-empts amendment McFee, Mr Bruce (West of Scotland) (SNP) 104. McNeill, Pauline (Glasgow Kelvin) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) Robert Brown: Amendments 5 and 7 are Pringle, Mike (Edinburgh South) (LD) drafting changes to make the wording of the Stevenson, Stewart (Banff and Buchan) (SNP) commissioner’s general duty less cumbersome. ABSTENTIONS The duty is simply to promote human rights rather Mitchell, Margaret (Central Scotland) (Con) than the unwieldy provision currently in the bill. There is no change to the substance of the The Convener: The result of the division is: For general duty, as the definition of “promote” that 6, Against 0, Abstentions 1. amendment 7 inserts into section 2(2) is still Amendment 142 agreed to. “promote awareness and understanding of, and respect for,” The Convener: Amendment 143, in the name of the minister, is in a group on its own. human rights. Amendments 5 and 7 are technical drafting amendments only. Robert Brown: Amendment 143 will bring the commissioner within the remits of the Scottish Amendment 6 addresses concerns that were information commissioner and the Scottish public expressed by members of the committee at stage services ombudsman. That is consistent with the 1 about the wording of section 2(1)(b), which approach that has been taken for other statutory requires the SCHR to officeholders. For example, the ombudsman and “encourage Scottish public authorities to comply with the information commissioner fall within each section 6 of the Human Rights Act 1998.” other’s remits. Members said that authorities should not need The SCHR will fulfil a public function and have encouragement, as they are already under a legal contact with members of the public, so the obligation to comply, and that the present wording argument is that it should be covered by the might be taken as implying that authorities were provisions of the Scottish Public Services felt to be failing or reluctant to meet their Ombudsman Act 2002 and the Freedom of obligations in the area.

†550 3829 27 SEPTEMBER 2006 3830

Amendment 6 removes the reference to The Convener: This morning, Marlyn Glen will encouraging public authorities to comply. The be Robin Harper and will speak to all the general duty to promote human rights and the amendments in his name. particular reference to encouraging Robert Brown: Where is the scarf? “best practice in relation to human rights” Marlyn Glen: I will speak to the amendments in in section 2(1)(a) will ensure that the core purpose Robin Harper’s name—that is as far as I will go. of the SCHR to work with public authorities to develop and maintain a culture of respect for As the minister said, the effect of amendments human rights is retained. 104 and 7A is to extend the SCHR’s general duty to include protection as well as promotion. I Amendment 144 delivers an important listened to the minister’s comments, but the commitment that we gave at stage 1 in response amendments would bring the SCHR’s powers in to concerns that the commissioner should focus line with those of the Great Britain commission for attention on those who would benefit most from equality and human rights. their work, such as those who are deprived or socially excluded, rather than on those who might Amendment 104 is important, because all the be described as the usual suspects, who are other powers and functions of the SCHR are perceived to benefit excessively from human framed around those of the CEHR. If protection is rights. I regard the amendment as giving a vital not included, the ability of the SCHR even to give steer to the commissioner, and the committee may advice to individuals on their rights could be see it in the same light. restricted. I invite the minister to say more about The amendment also reinforces the direction that. The first Paris principle states: against duplicating functions. It requires the “A national institution shall be vested with competence to commissioner to have particular regard to the promote and protect human rights.” human rights of those If we do not agree to amendment 104, we will not “groups in society whose human rights are not, in the be following that lead. Amendment 7A is a Commissioner’s opinion, otherwise being sufficiently consequential amendment. promoted.” I question the limitations that amendment 6 The draftsmen have come up with elegant seems to impose. It removes the provision that wording—it is always good to be nice to requires the SCHR to encourage public authorities colleagues—that ensures that the commissioner to comply with the Human Rights Act 1998. I will concentrate on those who have most difficulty question the amendment especially in the light of in asserting their rights and minimises the risk that the Amnesty International report to which I the commissioner will duplicate the work of other referred at last week’s meeting. In a survey, bodies. Amnesty International found that 65 per cent of Amendments 104 and 7A, in the name of Robin Scottish public authorities either did not Harper, introduce protection as part of the understand their duties under section 6 of the HRA commissioner’s general duty. However, as drafted, or could not provide evidence of steps that they the amendments would not give the commissioner had taken to comply with those duties. It is the function of protecting human rights. Rather, important that we discuss the matter properly. The they would give the commissioner the function of minister says that human rights are protected, but promoting the protection of human rights. the survey suggests that that is not the case. Mechanisms for the protection of human rights Amendment 144, which I understand replaces already exist, principally through individuals’ ability amendment 11, refers to to defend their rights in court under the Human Rights Act 1998 and the Scotland Act 1998. What “groups in society whose human rights are not, in the we currently lack is a source of expertise, advice Commissioner’s opinion, otherwise being sufficiently and guidance to encourage proactively the promoted.” development of a culture of respect for human I appreciate that the SCHR will have to prioritise rights. Including protection in the commissioner’s its work, but might amendment 144 undermine the general duty implies some sort of involvement in crucial point that human rights are for everyone the resolution of individual complaints, which and therefore play into the hands of people who would distract from the commissioner’s claim that human rights are just for minority promotional and awareness-raising functions and groups? That would be a dangerous road to travel. would risk encroaching on the proper There is also a risk that the approach would create responsibilities of the courts. Marlyn Glen is a hierarchy of groups that the SCHR would regard intending to move amendments 104 and 7A this as more or less deserving of its consideration. morning. I hope that my explanation of their effects Such a hierarchy might be apparent in the SCHR’s will persuade her not to do so. promotional material. In the current climate, in I move amendment 5. which litigation is common, the minister should †551 3831 27 SEPTEMBER 2006 3832

also consider whether amendment 144 might relate to public bodies. As she will recall, it was encourage groups to think that their rights had not thought that there was something infelicitous been sufficiently promoted, in comparison with the about the wording of section 2(1)(b). The general rights of other groups. duty on the commissioner remains, which gives general powers in this connection. Paragraph (b) Margaret Mitchell: I reiterate Marlyn Glen’s is not required for the overarching general duty point about amendment 144. If work was not prioritised properly and the human rights of certain “to encourage best practice in relation to human rights” groups were not being properly looked after, could to apply to public bodies. That is the reason for there be litigation? Is the minister aware that the amendment 6. Scottish human rights forum opposes amendment 144 for that reason? The commissioner will have the power to give advice. However, as the committee knows from The Convener: It is worth returning to our the debate and the consultation, it was not discussions at stage 1, when we considered who intended that the principal role of the is responsible for protecting human rights. The bill commissioner would be to give advice to would create a person or body that would promote individuals; it was intended rather that it would be awareness and understanding. In particular in the to deal with matters more generally. Nevertheless, light of the results of the poll that was conducted the issue remains and we should perhaps explore on the committee’s behalf, several members said it further. We have indeed looked at it before. at stage 1 that people from a socially excluded background are probably more likely than people I take the point that, according to the Amnesty from a wealthier background to think that a human International report, some local authorities have rights commissioner could do more. been found not to be doing as much as they could do in this connection. That is exactly the reason It is worth debating amendment 144, because for having the commissioner in the first place, so the debate can draw out the issues that we would that bodies of various kinds that operate in the expect the SCHR to address. Ultimately, the law public sphere can have the source of advice and protects people and the court interprets the law. promotional opportunity that the commissioner will Although a human rights commissioner or body bring. would promote human rights and in some cases exercise the power that the bill would confer on it As I said, amendment 144 is an important to intervene if appropriate, ultimately human rights amendment. I want to make it clear that it does not have been breached when the court says so, not go against the fact that, as Marlyn Glen rightly when the commissioner says so. We should be said, human rights are for everyone and that clear on that. human rights issues can arise in all sorts and particles of situations. That is not to say that Robert Brown: I will deal with the convener’s effective provisions are not already in place in point first, which others have made. The courts are some areas for the promotion of human rights. the recourse of last resort on such matters and Some people would say that in many respects the determine what the law is—in so far as it is not criminal courts already provide adequate human determined in the more general sense by the rights protection. Human rights law can readily be Parliament. There would be no question of the used in the determination of cases. human rights commissioner making a determination on a human rights matter per se. Equally, many people take the view that the However, I would expect practical details about human rights of some people—those who are whether bodies are following best practice or could perhaps less connected with society, who are do better to be very much the substance of the socially deprived or who are excluded in various commissioner’s reports. Such matters might not ways, or however we want to describe them— come to the court in the normal course of events, require our particular focus. This relates to the way but they might lead to changes in practice. Over in which the commission will set out its functions in the course of the debate, I have referred several terms of its strategic plan arrangements, to which times to the human rights consultancy report on we will turn in later amendments. It is not a matter the state hospital at Carstairs, which led to of saying that human rights are not for everyone— changes in practice and policy there. It is that kind they are. It is a matter of saying that in areas of thing that reports by the commissioner for where the need for the promotion of human rights human rights could be useful in doing. is above the usual, some sectors of society should perhaps have a greater prominence in the work of the commissioner for human rights. As I said, the 12:00 general duty remains. I reassure Marlyn Glen that there is nothing in our amendments in the group that will restrict the Margaret Mitchell asked whether litigation may ability of the commissioner to look at issues that result. I did not follow the point that she made. We are talking about a commissioner for human rights

†552 3833 27 SEPTEMBER 2006 3834 carrying out functions that have been laid down by ABSTENTIONS the Parliament. I cannot see how the question of Mitchell, Margaret (Central Scotland) (Con) litigation could arise as a result of the way in which The Convener: The result of the division is: For those duties were carried out. 4, Against 2, Abstentions 1. The Convener: Perhaps the minister will allow Margaret Mitchell to clarify the point. Amendment 6 agreed to. Margaret Mitchell: If the commissioner failed to Amendment 7 moved—[Robert Brown]. prioritise someone who was deemed to come into Amendment 7A moved—[Mr Bruce McFee]. the category that the minister mentioned, could litigation result? The Convener: The question is, that Robert Brown: I am subject to correction in this amendment 7A be agreed to. Are we agreed? regard, but I would have thought that that would Members: No. be a matter for the ombudsman. Margaret Mitchell will recall that we dealt with an earlier provision in The Convener: There will be a division. that kind of way. I am not sure that the situation FOR that she describes would lead to judicial review McFee, Mr Bruce (West of Scotland) (SNP) rights, but people would have to take individual Stevenson, Stewart (Banff and Buchan) (SNP) advice. I cannot see that it would lead to the AGAINST possibility of litigation in any other respect, for the particular reason that I cannot see how there Glen, Marlyn (North East Scotland) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) would be a complainer. Individual complainers do Mulligan, Mrs Mary (Linlithgow) (Lab) not have the right per se to take their case before Pringle, Mike (Edinburgh South) (LD) the commissioner for human rights and ask the ABSTENTIONS commissioner to follow through on it. I cannot see how there could be litigation in that regard. Mitchell, Margaret (Central Scotland) (Con) Amendment 5 moved—[Robert Brown]. The Convener: The result of the division is: For 2, Against 4, Abstentions 1. The Convener: The question is, that amendment 5 be agreed to. Are we agreed? Amendment 7A disagreed to. Members: No. The Convener: The question is, that amendment 7 be agreed to. Are we agreed? The Convener: There will be a division. FOR Members: No. Glen, Marlyn (North East Scotland) (Lab) The Convener: There will be a division. McFee, Mr Bruce (West of Scotland) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) FOR Mulligan, Mrs Mary (Linlithgow) (Lab) Glen, Marlyn (North East Scotland) (Lab) Pringle, Mike (Edinburgh South) (LD) McFee, Mr Bruce (West of Scotland) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) ABSTENTIONS Pringle, Mike (Edinburgh South) (LD) Mitchell, Margaret (Central Scotland) (Con) Stevenson, Stewart (Banff and Buchan) (SNP)

The Convener: The result of the division is: For ABSTENTIONS 6, Against 0, Abstentions 1. Mitchell, Margaret (Central Scotland) (Con) Amendment 5 agreed to. The Convener: The result of the division is: For Amendment 6 moved—[Robert Brown]. 6, Against 0, Abstentions 1. The Convener: The question is, that Amendment 7 agreed to. amendment 6 be agreed to. Are we agreed? Amendment 144 moved—[Robert Brown]. Members: No. The Convener: The question is, that The Convener: There will be a division. amendment 144 be agreed to. Are we agreed?

FOR Members: No. Glen, Marlyn (North East Scotland) (Lab) The Convener: There will be a division. McNeill, Pauline (Glasgow Kelvin) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) FOR Pringle, Mike (Edinburgh South) (LD) Glen, Marlyn (North East Scotland) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) AGAINST Mulligan, Mrs Mary (Linlithgow) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Pringle, Mike (Edinburgh South) (LD) Stevenson, Stewart (Banff and Buchan) (SNP)

†553 3835 27 SEPTEMBER 2006 3836

AGAINST In amendments 20A and 21A, the convener had McFee, Mr Bruce (West of Scotland) (SNP) proposed to require the SCHR to consult the Mitchell, Margaret (Central Scotland) (Con) Scottish Law Commission before undertaking any Stevenson, Stewart (Banff and Buchan) (SNP) law review activity and to provide details of its The Convener: The result of the division is: For intentions to review the law in its strategic plan. 4, Against 3, Abstentions 0. Those amendments were withdrawn as a consequence of the withdrawal of amendments 20 Amendment 144 agreed to. and 21, but I accept that there is obvious scope for Section 2, as amended, agreed to. overlap. We have no objection in principle to those requirements being stated explicitly in the bill. We Section 3—Duty to monitor law, policy and have therefore included provisions in subsection practice (2) of the new section inserted by amendment 145 and paragraph (b) of subsection (2) of the new The Convener: We are only at section 3—I feel section inserted by amendment 146 that achieve as though we should be much further on. the purpose of amendments 20A and 21A. Amendment 12, in the name of the minister, is grouped with amendments 145, 146, 83, 86 and Amendment 83 replaces the reference to 95. “action” in section 12(2)(b) with a reference to “activities”, to bring the description of the matters Robert Brown: At stage 1, committee members to be set out in SCHR annual reports into line with expressed reservations about the apparent that for strategic plans. breadth of the duty to keep the law under review that section 3 imposes on the commissioner. The Amendment 86 is another consequential Executive never intended the commissioner to be amendment. It deletes section 12(2)(c), which expected to keep all the law under review all the requires SCHR annual reports to include a time. As the Law Society of Scotland said in its summary of the action that the SCHR proposes to evidence, that would be an impossible task. I undertake in the following year. That information therefore said at stage 1 that the Executive would will instead be set out in the strategic plans. lodge amendments to redefine the law review Finally, amendment 95 moves section 14, which function and make it clear that it was discretionary gives the SCHR a general power to co-operate rather than mandatory and was subsidiary to the with other persons and bodies and requires it to commissioner’s core promotional and awareness- avoid unnecessary duplication with their activities, raising role. to before section 4. That is designed to emphasise Amendments 12 and 145 will deliver that the expectation that the SCHR will, as far as is commitment. Amendment 12 will remove section 3 practical, work with existing bodies. It is a robust and amendment 145 will replace it with a new section that, while respecting the independence of section that uses the word “may” rather than the the commissioner, ensures that he or she will previously used “must” and refers explicitly to remain focused on areas that his or her function reviewing can add value to. It operates within the framework “any area of the law”. of the strategic plan provisions, as I have mentioned. The function’s subsidiary nature will be emphasised by the fact that the new section will I move amendment 12. be placed after section 4, which sets out the power The Convener: First, I welcome amendment to engage in promotional and awareness-raising 146 on the strategic plan. I felt strongly that the activity. commissioner should be expected to lay out The committee’s stage 1 report also called for before Parliament the broad framework of subjects the commissioner to be required to publish that they intend to pursue in the four-year period. strategic plans on similar lines to the duty that will That would provide some structure to the person be placed on the GB commission for equality and or organisation with the human rights function, and human rights under the Equality Act 2006. it is reasonable that Parliament should have some Amendment 146 will meet that call by adding a idea of what the commissioner intends to promote new section that will require the SCHR to produce without interfering with their independence. a strategic plan every four years. Each plan will As you know, minister, I have a fundamental set out the objectives and priorities for the period concern about whether the commissioner should and the activities or kinds of activities that it have any duties to monitor the law. I do not accept proposes to undertake, along with timetables. The that that is the role of a commission, because I SCHR will be required to consult on a draft plan, believe that it is the role of Parliament. The including an explicit requirement to consult the commissioner could assist the Parliament in parliamentary corporation, and after such monitoring human rights matters and the law, but I consultation to lay the finalised plan before the make my position clear that law monitoring is a Parliament.

†554 3837 27 SEPTEMBER 2006 3838 role for Parliament. We have given part of the role The Convener: The result of the division is: For to the Scottish Law Commission, which is required 5, Against 0, Abstentions 1. to implement provisions of the European Amendment 145 agreed to. convention on human rights, but there is no point in that if we then give the impression that we are Amendment 146 moved—[Robert Brown]. giving its duty to another body. The Convener: The question is, that I welcome the Executive’s amendments, which amendment 146 be agreed to. Are we agreed? tidy up the situation. My reading is that if the Members: No. commissioner were concerned about any aspect of Scots law, they would consult the Scottish Law The Convener: There will be a division. Commission. They would be required to think FOR about that in advance, so we would see it in the SCHR’s strategic plan. That would ensure that Glen, Marlyn (North East Scotland) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Parliament could work with the commissioner and McNeill, Pauline (Glasgow Kelvin) (Lab) that there would be an indication that some work Mulligan, Mrs Mary (Linlithgow) (Lab) was required on a part of the existing law. Pringle, Mike (Edinburgh South) (LD)

Minister, would you like to say anything in ABSTENTIONS conclusion? Mitchell, Margaret (Central Scotland) (Con) Robert Brown: No, there is nothing that goes The Convener: The result of the division is: For against my earlier moves. The amendments are 5, Against 0, Abstentions 1. important and I hope that the committee will Amendment 146 agreed to. accept them. The Convener: I point out to members that we The Convener: The question is, that have to finish stage 2 today and that we also have amendment 12 be agreed to. Are we agreed? other business. This would be an appropriate time Members: No. for a break. The Convener: There will be a division. 12:16 FOR Glen, Marlyn (North East Scotland) (Lab) Meeting suspended. McFee, Mr Bruce (West of Scotland) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) 12:25 Pringle, Mike (Edinburgh South) (LD) On resuming— ABSTENTIONS Mitchell, Margaret (Central Scotland) (Con) Section 5—Power to conduct inquiries The Convener: The result of the division is: For The Convener: I reconvene the meeting. 5, Against 0, Abstentions 1. Amendment 105, in the name of Robin Harper, Amendment 12 agreed to. is grouped with amendments 106 to 110. Section 4 agreed to. Marlyn Glen: I agreed to speak to amendment 105 to give the committee a chance to discuss After section 4 section 5, which is on the power to conduct inquiries. It is important that we do so. Amendment 145 moved—[Robert Brown]. Amendment 105 would extend the scope of The Convener: The question is, that inquiries that the SCHR can carry out—inquiries amendment 145 be agreed to. Are we agreed? into public authorities generally, specific named Members: No. public bodies that are the only bodies of their type or matters relating to a suspected breach of torture The Convener: There will be a division. conventions—to include inquiries into any person FOR or organisation, whether public or private. As they stand, the proposed inquiry powers of the SCHR Glen, Marlyn (North East Scotland) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) are limited: they cover only public authorities McNeill, Pauline (Glasgow Kelvin) (Lab) generally or specific named bodies if they are the Mulligan, Mrs Mary (Linlithgow) (Lab) only bodies of their type. That means that if the Pringle, Mike (Edinburgh South) (LD) commissioner receives a number of complaints ABSTENTIONS about a local authority, time, staff and resources Mitchell, Margaret (Central Scotland) (Con) will have to be committed to undertake an inquiry into all local authorities to tackle the problem,

†555 3839 27 SEPTEMBER 2006 3840

which is unacceptable when we are conscious that they relate to Scotland. I understand that no we need to control resources. Amendment 105 distinction is needed between public and private seeks to bring the powers of the SCHR into line organisations on equality issues, because an act with those of the CEHR, which will be able to of Parliament makes it clear that the commission inquire into any public or private body on any can operate in the public and private sectors. matter that is connected with its powers and However, on human rights, we deal primarily with functions. the Human Rights Act 1998 and some conventions. The 1998 act deals primarily with Amendment 106 is consequential. Amendments public authorities in the broadest sense, so I am 107 and 108 would extend the categories of unclear how the GB commission can have a people whom the SCHR could call to give power to hold inquiries into non-public bodies in evidence. Section 7 specifies the categories of relation to the 1998 act. Is it because holding an people whom the SCHR can call—they are public inquiry introduces flexibility? I do not know authorities or employees of public authorities. whether anyone can help me with that. Deleting section 7(2) would mean that the people who can be called would not be restricted—all Robert Brown: Several points have been made. relevant people could be called to any inquiry. You are entirely right about the definition of human That would bring the powers of the SCHR into line rights, because the 1998 act refers to public with those of the CEHR, which will be able to call bodies—they are the focus of attention. The GB any person to give evidence. Such an approach commission will not be set up in precisely the fits with the Paris principles, which state: same way. In some respects, such as the power of “Within the framework of its operation, the national entry, our bill provides greater powers than the GB institution shall … Hear any person and obtain any commission will have. In some situations, we will information and any documents necessary for assessing have different or fewer powers. We do not have to situations falling within its competence”. echo and reflect every detail of the GB The committee is aware of how limiting it can be commission, but we will follow good guidance if it not to have the ability to call on whomever one exists. wants to call in an inquiry and not to be able to ask Members should remember that the big them for documents. difference between the GB commission and the I am interested in the minister’s take on those proposed Scottish human rights commissioner is amendments. Amendments 109 and 110 are simply that the GB commission will have the wider consequential. equalities role to which the convener referred. Several provisions in the Equality Act 2006, such I move amendment 105. as those on who can be called to inquiries, are phrased more generally, and primarily are directed Mr McFee: I will be brief. I have said that the bill towards the GB commission’s equalities role. I am is neither fish nor fowl and that it is limited. Those not answerable for the 2006 act, so I cannot say of us who take such matters seriously believe that much more about it. it is the result of political compromise. Consequently, its provisions are either unclear or I will deal with the other points that were raised. will result in diluted powers for the commissioner. The Convener: Have you dealt with my Amendment 105 seeks as far as possible to question? make the powers of the SCHR mirror those of the CEHR. It seems strange that, in conducting Robert Brown: Yes—in part. I accept that I did inquiries into non-devolved issues in Scotland, the not answer it entirely. CEHR will have the power to call whichever The Convener: I would be happy if you wrote to organisations it wishes and to consider any case me. I do not understand how the GB body can that it wishes, while the Scottish commissioner for have the power to compel a witness who is not human rights will be restricted in such matters. from a public authority to appear, since it will apply We have heard that the rationale for the bill is the same act as we will—the 1998 act. Will the GB that the United Kingdom legislation left a gap in body have that power? I understand that we will establishing the CEHR, but the Executive’s role not have it. seems to be to plug that gap only partially. To be Robert Brown: It would be better if I wrote to frank, I often wonder whether the minister believes you. We think that the GB commission will have that he is delivering the best bill that he can. that power, but consideration of the powers that the GB body will have is not the main issue for our bill. Some issues with powers in relation to human 12:30 rights are, in a sense, hangovers from the fact that The Convener: I suppose that my question is matters are expressed more generally, now that for Marlyn Glen or the minister. Clarity is needed the equalities and human rights roles are joined. I about the GB commission’s functions and how understand that we have different levels of inquiry †556 3841 27 SEPTEMBER 2006 3842 for the two functions. To avoid doubt, we are SCHR will, if requested to do so by the relevant happy to write to you to provide a bit of clarity. international oversight body, be able to conduct inquiries under international human rights I ask the committee to reject amendments 105 instruments such as the UN convention against to 110, which Marlyn Glen ably presented. I torture. In doing so, the SCHR will operate on recognise what she is trying to do. In a sense, an behalf of the relevant international body and be issue of width and depth is involved, involving expected to comply with its procedures, including budgets and so forth. Amendment 105 would cast the preparation and submission of reports. Such the inquiry power far too widely. The SCHR must reports will be published by the international body have a reasonably clear focus. Under the inquiry in accordance with its own timetable and power, the focus will be on considering whether procedures and will generally remain confidential public authorities have sufficient awareness of until published. Amendments 109 and 110 go human rights, exactly as detailed in the 1998 act, against that by requiring the SCHR to submit such and whether that is reflected in their policies and reports to the Parliament in the same way as other practices. Fundamentally, amendment 105 is SCHR reports and so could, in practice, prevent unacceptable because the legal obligation to the SCHR from undertaking monitoring work under comply with human rights has been imposed on conventions such as the convention against public authorities. That is why section 2(3) torture. imposes a general requirement on the SCHR to have particular regard to the convention rights in I have touched on the point about the different exercising its functions. role of the CEHR. A fundamental principle is that the SCHR will not The issue of who can be required to give handle individual complaints. That has been clear evidence is linked to the issue about public bodies. from an early stage: it was dealt with in the We are able to require the staff of the public consultation papers and so on. Amendment 106 bodies concerned to give evidence but only to ask would detract from that principle by empowering others. There is a question mark over the the SCHR to investigate individual bodies as a advantage of bringing in reluctant witnesses from matter of course. That would not be consistent spheres other than the body concerned. Most of with the vision of the SCHR as a body whose main the people who will have an issue to put before the purpose is the general promotion of human rights SCHR will be happy to give evidence, as they are rather than being another layer of regulation and entitled to do. The question whether we require to enforcement. compel them takes us further into other issues. With regard to the point about resources, we are As I have said from the beginning, the powers beginning to get into Scottish public services that the bill confers are substantial; they are not a ombudsman territory if we narrow the inquiry compromise. We have tried to fit them into a power to specific inquiries into specific bodies. sensible added-value role in the Scottish context, That would create the potential for the SCHR to between the GB commission, which will deal with overlap with and encroach substantially on the role reserved issues, and the other commissioners and of the ombudsman. The inquiry power is intended bodies that operate in Scotland. That is why the to complement the SCHR’s general purpose to SCHR has been given the powers in the bill. promote and raise awareness of human rights Have I missed any of the points that were issues, by allowing it to investigate broad issues of raised? I have a vague feeling that there was concern rather than individual cases, but the something else. amendments would detract from that by risking the SCHR becoming bogged down in consideration of Marlyn Glen: I have a question about overlap. I specific cases. There would be budgetary was under the impression that there was a considerations, as well, if we went in that direction. requirement in the bill for the SCHR not to overlap. Under section 5, the SCHR’s ability to conduct Robert Brown: Yes, there is. general inquiries will, in any case, include private companies and individuals in so far as their nature Marlyn Glen: So that point would be covered, and functions bring them within the definition of would it not? public authority that is contained in the Human Robert Brown: It would. However, if we Rights Act 1998. The amendments may be aimed widened the SCHR’s powers to such an extent at extending the SCHR’s remit to issues such as that, in practical terms, it was pushed too far into the provision of contracted-out services or matters the Scottish public services ombudsman’s area— of that sort, but it is not necessary to go in that which the power to inquire into individual bodies direction, because of the existing powers. might do—that would produce the overlap that we are trying to avoid. I appreciate that there is a The purpose of the references to “excepted degree of flexibility, but that would push the inquiries” in section 9—which have not been SCHR’s powers too far. mentioned in this discussion—is to ensure that the †557 3843 27 SEPTEMBER 2006 3844

Marlyn Glen: It has been helpful to have this I move amendment 147. discussion. I underline the fact that there is still a Amendment 147 agreed to. bit of disquiet within equality bodies about the proposed commission and other matters. I look Section 7, as amended, agreed to. forward to receiving the letter that will clarify the points that the convener has made. At this point, I Schedule 2 agreed to. seek to withdraw amendment 105. Section 8 agreed to. The Convener: Are we agreed that amendment 105 be withdrawn? Schedule 3 PLACES OF DETENTION: POWERS OF ENTRY, INSPECTION AND Mr McFee: No. INTERVIEW The Convener: In that case, I will put the The Convener: Amendment 47, in the name of question. The question is, that amendment 105 be the minister, is grouped with amendments 148, 49 agreed to. Are we agreed? and 50. Members: No. Robert Brown: Again, I will be brief. In our The Convener: There will be a division. response to the committee’s stage 1 report, we agreed to remove the requirement in the bill for the FOR SCHR to give 14 days’ notice before exercising McFee, Mr Bruce (West of Scotland) (SNP) the power to enter a place of detention for the AGAINST purposes of an inquiry. Amendment 47 delivers Glen, Marlyn (North East Scotland) (Lab) that commitment by removing paragraph 1 of McNeill, Pauline (Glasgow Kelvin) (Lab) schedule 3. That means that the SCHR will be Mitchell, Margaret (Central Scotland) (Con) able to exercise that power without giving any prior Mulligan, Mrs Mary (Linlithgow) (Lab) notice to the institution concerned. Pringle, Mike (Edinburgh South) (LD) Amendment 148 allows the power to be The Convener: The result of the division is: For exercised by the commissioner or any other 1, Against 5, Abstentions 0. person who is authorised by him or her. Amendment 105 disagreed to. Amendment 49 therefore provides that an individual seeking to exercise the power of entry Section 5 agreed to. will be required to produce evidence of his authority to do so before gaining access. Section 6—Restrictions as to scope of inquiry Amendment 50 removes paragraph 3 of Amendment 106 not moved. schedule 3, which provides for the cancellation of Section 6 agreed to. a notice seeking entry. That paragraph is redundant if the other amendments are agreed to. Section 7—Evidence I move amendment 47. Amendments 107 and 108 not moved. Mrs Mulligan: I welcome the minister’s The Convener: Amendment 147, in the name of response on these matters, which the committee the minister, is in a group on its own. considered at stage 1 and wanted to press him on. I am pleased that the Executive has responded. Robert Brown: I will be brief. Amendment 147 has been requested by the Scottish Legal Aid Mike Pringle: I agree. When I first read Board to address a potential conflict between schedule 3, I thought it was nonsense. There was section 7 of the bill and section 34 of the Legal Aid considerable discussion of it in the committee. I (Scotland) Act 1986. Section 7 gives the SCHR am pleased that the minister and the Executive the power to require any person specified in have decided to delete the paragraphs. The section 7(2) to provide information in connection commissioner will be able to turn up, produce his with an inquiry. Section 34 of the Legal Aid documentation and gain entry, which is exactly (Scotland) Act 1986 places the Scottish Legal Aid what should happen, not what was originally Board under a duty to keep confidential proposed. information that is provided to it by persons who Amendment 47 agreed to. are seeking or receiving legal aid. Disclosure in breach of section 34 is a criminal offence. Amendment 148, 49 and 50 moved—[Robert Amendment 147 provides for an exception to be Brown]—and agreed to. made for the disclosure of information to the Schedule 3, as amended, agreed to. commissioner. A similar provision appears in the Scottish Public Services Ombudsman Act 2002.

†558 3845 27 SEPTEMBER 2006 3846

12:45 of justice by creating a potential for delay in personal and important cases. Such a power is Section 9—Report of inquiry also unnecessary, given the strong human rights Amendments 109 and 110 not moved. safeguards that are already built into the criminal justice system. We therefore believe that Section 9 agreed to. amendments 111, 112, 112A, 113, 115 and the new section 11 that would be inserted by Section 10—Confidentiality of information amendment 118, which would extend the SCHR’s Amendment 166 not moved. express intervention power to all legal proceedings, are inappropriate. Section 10 agreed to. Amendments 112 and 114, and the new section Section 11—Power to intervene 11 that would be inserted by amendment 118, would also extend the SCHR’s intervention power The Convener: Amendment 64, in the name of to children’s hearings. Similar arguments apply to the minister, is grouped with amendments 111, this as to the previous issue, but perhaps with an 112, 112A, 67, 74, 76, 78 and 113 to 118. even greater degree of urgency. Robert Brown: I am beginning to see the far First, children’s cases ought to be determined shores of stage 2. quickly and without side issues of intervention. They can be regarded as analogous to criminal Executive amendments 64, 74, 76 and 78 proceedings in terms of human rights law, so the address drafting points in relation to section 11, to arguments against allowing the SCHR to intervene make clear that the provisions relating to the in criminal proceedings also have relevance here. SCHR’s statutory power of intervention in civil I have already touched on the potential for delay. proceedings will apply without prejudice to any ability to intervene in any type of proceedings Secondly, as with criminal proceedings, there is under existing law and practice. They do so by no existing mechanism for any third-party replacing references to “this section” in section 11 intervention in children’s hearings. Rather than with references to “subsection (2)”, thus ensuring creating a one-off intervention power for the that the detailed provisions on intervention in SCHR, it would be preferable for that to be section 11 apply only to the specific power under considered in the wider context of whether third- section 11(2) and not to the SCHR’s capacity party intervention in general should be allowed, so under section 11(8) to use any and all existing as to allow any potential implications for the intervention procedures. children’s hearings system to be properly assessed. In that context, the Education There will be a test on that at the end of my Department is considering the children’s hearings speech. system at the moment, and legislation on that will On Robin Harper’s amendments 111, 112 and be brought forward in the next session of 112A—which I assume Marlyn Glen will move— Parliament. we have considered carefully the issues raised by Amendment 112A would extend the SCHR’s the Law Society of Scotland and others in explicit power of intervention to connection with the intervention provision. However, the Executive’s objective remains as “proceedings before the Judicial Committee of the Privy expressed at stage 1, namely that the bill should Council”. enable the SCHR to intervene where third parties However, that would be outwith legislative generally can already do so, rather than create a competence, as the procedures that govern the new right of intervention where none presently Judicial Committee of the Privy Council are exists. The provisions in the bill are intended to reserved. It is also unnecessary, because the avoid any doubt that the SCHR has the capacity to Judicial Committee already has procedures for use such existing mechanisms. The express third-party intervention, of which the SCHR will be power in the bill is therefore limited to civil able to take advantage under section 11(8). proceedings, since there is already a general ability for third parties to seek to intervene in such I am not entirely clear about the intention behind cases, even if it is used only rarely. If, in the future, amendment 116. If it is intended expressly to changes were made to the general law, the power apply the SCHR’s intervention power to appeal would allow that right to be extended. proceedings in the Court of Session and the sheriff court by removing the word “both” from section On the other hand, there is no existing general 11(9), that is unnecessary, because section 11(9) ability for third parties to intervene in criminal already provides that the SCHR will be able to proceedings. The Executive believes that allowing intervene in appeal proceedings. If there is an such a power of intervention, even if it were limited intention beyond that, I would appreciate some to the SCHR, could prejudice the efficient delivery clarification on what it is.

†559 3847 27 SEPTEMBER 2006 3848

Amendment 117 would extend the SCHR’s Mr McFee: On this occasion, there is some power of intervention to the district courts. merit in what the minister says, particularly on how However, they deal only with criminal matters, so amendments 111, 112, 112A and 113 to 118 have the arguments that I have given against been presented. We are invited to amend a intervention in criminal cases apply to amendment section substantially and then delete it, which 117 as well. seems somewhat pointless. Some of the The new section 11 that amendment 118 would amendments—particularly amendments 113 to insert includes a power for the SCHR to institute 117—are clumsy and, to be frank, need to be legal proceedings in its own name and, for that rethought. purpose, would disapply the victim test in section 7 The minister made the point that the victim test of the Human Rights Act 1998. However, it would to which amendment 118 refers is determined be outwith legislative competence to confer such a elsewhere. That obstacle needs to be overcome. I power on the SCHR, as the Human Rights Act intend not to move the amendments, to allow Mr 1998 is reserved to Westminster under paragraph Harper to revise what he is attempting to do and 1 of schedule 4 to the Scotland Act 1998. In any be present when his amendments are moved. event, our position remains that such a power would be undesirable, as it would divert the SCHR A point was made about raising the level of away from his core function of promotion and expectations. Heaven forbid that we should have awareness raising. Other jurisdictions have found high expectations of our commissioner for human that having a power to raise cases can create rights—that would be very adventurous. I caution expectations that the power will be used frequently against citing the example of Northern Ireland, by bodies, which detracts from their other where the issues are dramatically different in activities. That has emerged strongly from the many respects from those in Scotland. It is not a experience of the Northern Ireland Human Rights good comparison. Commission. The Convener: I want to respond to the I move amendment 64. minister’s comments on section 11(9). He has clarified that the commissioner will have the power Marlyn Glen: Section 11 is particularly to intervene in appeal proceedings. We were complicated; it is good to hear the minister’s unclear about that at stage 1. The clarification is justification. At first sight, it does not look right at helpful, but I want to ensure that I have all that the commissioner will not have the power understood the minister correctly. In Scots law, we to intervene in criminal court cases. The desired do not permit the intervention of third parties effect of amendments 111, 112, 112A and 113 to generally, although it should be noted that there 118 is to extend that power. are more than 600 challenges to the criminal law. I understand that the Northern Ireland Human Today one of those challenges, on the right to Rights Commission was not originally given the silence, has gone to Strasbourg. If the court in power to institute proceedings and that it had to go Strasbourg takes the view that speed cameras to the House of Lords to win the right to do so. I contravene the right to silence, that will have wide- would like the minister to go over that point again ranging implications, but it is a matter for the court. and explain a little further why that power would The criminal law has been thoroughly tested and, not be right for the SCHR. as we indicated in our report, there have been Amendment 112 is specifically about children’s very few successful challenges. However, a bit hearings. I take the point that the children’s more work is needed in the area of civil law, where hearings system will be examined in the next the power of intervention should exist. I want to be parliamentary session, but I reiterate that crystal clear about whether section 11(9) gives the children’s hearings are particularly important and commissioner the right to intervene at the Court of should not be left out of the bill as if they were not. Session in relation to civil appeals. However, the bill on children’s hearings will, I Robert Brown: Section 11(9) gives the presume, be lengthy and wide, and I look forward commissioner the power of intervention at the to considering it in the next parliamentary session. Court of Session in matters that come within their I am speaking to the amendments in Robin ambit. Harper’s name because it is important to discuss One or two more general points emerge from the points that they raise. Amendment 118 is an the discussion. The Northern Ireland experience alternative way of dealing with the changes that was not cited in a general sense, although there are proposed in amendments 111, 112, 112A and are various areas in which it is relevant. The issue 113 to 117. It has been lodged as an option. In the is the power to intervene, which was not made event that the power to intervene is not accepted, explicit one way or the other in the statute that the smaller amendments 111, 112, 112A and 113 constituted the commission. In connection with a to 117 could still extend the commissioner’s coroner’s inquiry, the matter had to be referred to powers to intervene. the House of Lords, so that the law could be

†560 3849 27 SEPTEMBER 2006 3850 declared. The House of Lords said that in that FOR regard the commission could take advantage of Glen, Marlyn (North East Scotland) (Lab) existing law and practice in other realms. To avoid McNeill, Pauline (Glasgow Kelvin) (Lab) the same happening in respect of the Scottish Mulligan, Mrs Mary (Linlithgow) (Lab) commissioner, we have included in the bill a clear Pringle, Mike (Edinburgh South) (LD) statement that if existing law and practice allows ABSTENTIONS interventions, the commissioner will be able to McFee, Mr Bruce (West of Scotland) (SNP) take advantage of that. That clear, overarching Mitchell, Margaret (Central Scotland) (Con) commitment is well phrased in the bill. The Convener: The result of the division is: For We do not want to introduce a new power of 4, Against 0, Abstentions 2. intervention in particular sorts of procedure as a Amendments 67, 74, 76 and 78 agreed to. by-blow of the bill. Any such change should be more considered and should be introduced in the Amendments 113 to 118 not moved. context of criminal law reform, reform of the Section 11, as amended, agreed to. children’s hearings system and so on, if we are so minded. Section 12—Annual report I have dealt with the main points that members Amendment 83 moved—[Robert Brown]. have made. Despite Bruce McFee’s comments, at the end of the day we are delivering a bill to The Convener: The question is, that establish a Scottish commissioner for human amendment 83 be agreed to. Are we agreed? rights that will add significantly to the arrangements for promoting and protecting human Members: No. rights that are in place in Scotland. The section The Convener: There will be a division. that we are debating is only a small aspect of the overall scheme, but it gives the commissioner FOR powers that can be used on appropriate occasions Glen, Marlyn (North East Scotland) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) to do things in a legal context, within the limits that Mulligan, Mrs Mary (Linlithgow) (Lab) the amendments set. Pringle, Mike (Edinburgh South) (LD)

13:00 ABSTENTIONS McFee, Mr Bruce (West of Scotland) (SNP) The Convener: The question is, that Mitchell, Margaret (Central Scotland) (Con) amendment 64 be agreed to. Are we agreed? The Convener: The result of the division is: For Members: No. 4, Against 0, Abstentions 2. The Convener: There will be a division. Amendment 83 agreed to. FOR Amendment 86 moved—[Robert Brown]. Glen, Marlyn (North East Scotland) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) The Convener: The question is, that Mulligan, Mrs Mary (Linlithgow) (Lab) amendment 86 be agreed to. Are we agreed? Pringle, Mike (Edinburgh South) (LD) Members: No. ABSTENTIONS McFee, Mr Bruce (West of Scotland) (SNP) The Convener: There will be a division. Mitchell, Margaret (Central Scotland) (Con) FOR The Convener: The result of the division is: For Glen, Marlyn (North East Scotland) (Lab) 4, Against 0, Abstentions 2. McNeill, Pauline (Glasgow Kelvin) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) Amendment 64 agreed to. Pringle, Mike (Edinburgh South) (LD) Amendments 111, 112 and 112A not moved. ABSTENTIONS McFee, Mr Bruce (West of Scotland) (SNP) Amendments 67, 74, 76 and 78 moved—[Robert Mitchell, Margaret (Central Scotland) (Con) Brown]. The Convener: The result of the division is: For The Convener: If no member disagrees, I will 4, Against 0, Abstentions 2. put a single question on the amendments. Amendment 86 agreed to. The question is, that amendments 67, 74, 76 and 78 be agreed to. Are we agreed? Amendment 130 not moved. Members: No. Section 12, as amended, agreed to. The Convener: There will be a division. Sections 13 and 14 agreed to.

†561 3851 27 SEPTEMBER 2006 3852

Amendment 95 moved—[Robert Brown]. to fold. I have highlighted the excellent work in this area of the Scottish Human Rights Centre, The Convener: The question is, that formerly the Scottish Council for Civil Liberties; it amendment 95 be agreed to. Are we agreed? was a real pity when it had to wind up less than a Members: No. year ago. I am keen to hear the Executive’s views not only on the issue of grants that Marlyn Glen The Convener: There will be a division. has raised but on the question whether there is FOR scope to ensure that other NGOs receive Glen, Marlyn (North East Scotland) (Lab) adequate funding. McFee, Mr Bruce (West of Scotland) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) Mrs Mulligan: I might be out of sync with my Mulligan, Mrs Mary (Linlithgow) (Lab) colleagues on this matter, because I do not think Pringle, Mike (Edinburgh South) (LD) that the commissioner’s role should include providing grants to other bodies that deal with ABSTENTIONS human rights issues. There is certainly an issue Mitchell, Margaret (Central Scotland) (Con) about how such organisations are funded and, like The Convener: The result of the division is: For Pauline McNeill, I regret the fact that the Scottish 5, Against 0, Abstentions 1. Human Rights Centre had to fold. However, the commissioner’s role in promoting and protecting Amendment 95 agreed to. human rights is clear and I think that putting grant- making responsibilities on its shoulders would be After section 14 an incongruous move. I am interested to hear The Convener: Amendment 119, in the name of what the minister has to say, but at the moment I Robin Harper, is in a group on its own. remain unconvinced by amendment 119. Marlyn Glen: Amendment 119 seeks to insert Margaret Mitchell: I am against giving the into the bill a new section that would bring the commissioner grant-making powers. As I have Scottish commissioner for human rights into line made clear right from the start, I would prefer it if with the CEHR by giving it the power to make voluntary organisations with the experience and grants to other organisations involved in human expertise to take up individual cases were funded rights work in Scotland. The wording is lifted from directly. section 17 of the Equality Act 2006. There is a Robert Brown: First, I point out that the need for a specific power in that regard because commissioner probably has grant-making powers the power in section 4 to charge fees for work both under the general duty in the bill and, done is not wide enough to encompass grants. specifically, under paragraph 8(1) of schedule 1, Moreover, the human rights non-governmental which says: organisation sector in Scotland is very underresourced and needs support if the SCHR is “The Commissioner may do anything which appears to fulfil the aim of providing a strong network of necessary or expedient for the purpose of, or in connection with, or which appears conducive to, the exercise of the local provision to build a human rights culture Commissioner’s functions.” throughout Scotland. I know that the GB commission will have such a I move amendment 119. power, but we see it as more of a subsidiary Mr McFee: Marlyn Glen has made the point power than one of the body’s main roles. Indeed, reasonably well. The committee heard evidence as we have heard, committee members are that voluntary sector organisations have been divided on the matter. starved of cash to carry out their work and that Given that the power might already exist in the they very much rely on the dedication of a few bill, it might be worth considering the nature of individuals. Whether amendment 119 is the such a power and how it might work in practice. correct way of dealing with the problem is another The commissioner should, among other things, be matter. The question of grants would certainly able to impose conditions on any grants that he or arise if the bill’s scope were to be widened along she makes. the lines suggested earlier. In any case, I suspect that Marlyn will probably withdraw amendment Consideration ought also to involve the Scottish 119. I will not force the amendment to a vote, Parliamentary Corporate Body, given its budgetary because the matter needs to be debated in the and general oversight responsibilities. We would context of a far wider range of issues. That will like to reconsider some of the issues that have happen at stage 3. been raised and return to the matter. Nothing that I have said was intended to suggest that it will be The Convener: I am sympathetic to amendment the main role of the body to carry out its functions 119, because I have always felt that creating a by way of grant provision. However, one could Scottish commissioner for human rights should not envisage a situation in which giving assistance to mean that other human rights organisations have †562 3853 27 SEPTEMBER 2006 3854 another body might be a way of providing consultancy or other relevant services. In light of the support for such a measure among at least some committee members, we would like to consider the details further and return to the issue at stage 3. However, the present proposals are not phrased in quite the right way, which is why we want to consider the details of such a provision, against the background of the growing number of governance issues that have been raised. I hope that the committee feels that that is a reasonable response to the views that members have expressed. Marlyn Glen: I thank the minister for that response. I look forward to revisiting the matter at stage 3. The provision might have different terms, but it would be good if the idea was implemented. Amendment 119, by agreement, withdrawn. Sections 15 to 17 agreed to.

Section 18—Interpretation Amendment 167 not moved. Section 18 agreed to. Section 19 agreed to. Long title agreed to. The Convener: The long title is the sign that we are at last approaching the end of a bill. That ends stage 2 consideration of the Scottish Commissioner for Human Rights Bill. I thank the minister and his team for appearing at the stage 2 meetings. We have had a long meeting today but, unfortunately for us, it is going to be even longer, as we have other business. I promise that it will be quick. Robert Brown: I thank you for your consideration and wish the committee well in its business—I know that you are under great pressure. The Convener: Thank you—see you at stage 3.

†563

†564 Scottish Commissioner for Human Rights Bill [AS AMENDED AT STAGE 2]

CONTENTS

Section

Scottish Commissioner for Human Rights 1 Scottish Commissioner for Human Rights

General functions 2 General duty to promote human rights 4 Information, guidance, education etc. 4A Monitoring of law, policies and practices 14 Power to co-operate etc. with others

Strategic plans 4B Strategic plans

Inquiries 5 Power to conduct inquiries 6 Restrictions as to scope of inquiry 7 Evidence 8 Places of detention: powers of entry, inspection and interview 9 Report of inquiry 10 Confidentiality of information

Intervention in civil proceedings 11 Power to intervene

Reports 12 Annual report 13 Publication of reports

General 15 Protection from actions for defamation 16 Giving of notice 17 Meaning of “Scottish public authority” 18 Interpretation 19 Short title, Crown application and commencement

______

Schedule 1—Scottish Commissioner for Human Rights Schedule 2—Inquiries: supplementary provision as to evidence

SP Bill 48A Session 2 (2006) †565 ii Scottish Commissioner for Human Rights Bill

Schedule 3—Places of detention: powers of entry, inspection and interview

†566 Scottish Commissioner for Human Rights Bill 1

Amendments to the Bill since the previous version are indicated by sidelining in the right margin. Wherever possible, provisions that were in the Bill as introduced retain the original numbering.

Scottish Commissioner for Human Rights Bill [AS AMENDED AT STAGE 2]

An Act of the Scottish Parliament to provide for the appointment and functions of the Scottish Commissioner for Human Rights.

Scottish Commissioner for Human Rights 1 Scottish Commissioner for Human Rights

5 (1) There is to be an officer known as the Scottish Commissioner for Human Rights (and referred to in this Act as the “Commissioner”). (2) The Commissioner is to be an individual appointed by Her Majesty on the nomination of the Scottish Parliament. (3) Her Majesty may, on the nomination of the Parliament, appoint individuals to be deputy 10 Scottish Commissioners for Human Rights; and references in this Act to a deputy Commissioner are to any such deputy. (4) There are to be no more than two deputy Commissioners at any time. (5) The Commissioner’s functions may be exercised by a deputy Commissioner if— (a) the office of Commissioner is vacant (unless there is an acting Commissioner 15 appointed under paragraph 5 of schedule 1), or (b) the Commissioner is for any reason unable to act, and while exercising those functions the deputy Commissioner is to be treated for all purposes, except those of paragraphs 4, 6 and 7(a) of schedule 1, as the Commissioner. (6) Schedule 1 makes further provision about the Commissioner and deputy 20 Commissioners.

General functions 2 General duty to promote human rights (1) The Commissioner’s general duty is, through the exercise of the Commissioner’s functions under this Act, to promote human rights and, in particular, to encourage best 25 practice in relation to human rights. (2) In this Act, “human rights” means—

SP Bill 48A Session 2 (2006)

†567 2 Scottish Commissioner for Human Rights Bill

(a) the Convention rights within the meaning of section 1 of the Human Rights Act 1998 (c.42), and (b) other human rights contained in any international convention, treaty or other international instrument ratified by the United Kingdom.

5 (2A) In this section, “promote”, in relation to human rights, means promote awareness and understanding of, and respect for, those rights. (3) In deciding what action to take under this Act in pursuance of the Commissioner’s general duty, the Commissioner must have regard, in particular, to the importance of exercising the Commissioner’s functions under this Act in relation to––

10 (a) the Convention rights, and (b) human rights of those groups in society whose human rights are not, in the Commissioner’s opinion, otherwise being sufficiently promoted.

4 Information, guidance, education etc. (1) For the purposes of the Commissioner’s general duty, the Commissioner may—

15 (a) publish or otherwise disseminate information or ideas, (b) provide advice or guidance, (c) conduct research, (d) provide education or training. (2) The Commissioner may charge reasonable fees in connection with anything done by or 20 on behalf of the Commissioner under subsection (1). (3) Sums paid to the Commissioner in respect of fees charged under subsection (2) are to be retained by the Commissioner and applied to meet expenses incurred by the Commissioner in doing anything under subsection (1).

4A Monitoring of law, policies and practices 25 (1) For the purposes of the Commissioner’s general duty, the Commissioner may review and recommend changes to— (a) any area of the law of Scotland, or (b) any policies or practices of any Scottish public authorities. (2) The Commissioner must consult the Scottish Law Commission before undertaking a 30 review of any area of the law under subsection (1)(a).

14 Power to co-operate etc. with others (1) The Commissioner may, in the exercise of any of the Commissioner’s functions— (a) consult, (b) act jointly with,

35 (c) co-operate with, or (d) assist, any other person.

†568 Scottish Commissioner for Human Rights Bill 3

(2) The Commissioner must seek to ensure, so far as practicable, that any activity undertaken by the Commissioner under this Act does not duplicate unnecessarily any activity undertaken by any other person under any other enactment.

Strategic plans

5 4B Strategic plans (1) The Commissioner must, before the beginning of each 4 year period, lay before the Parliament a plan (referred to in this section as a “strategic plan”) setting out information as to how the Commissioner proposes to fulfil the Commissioner’s general duty during that period.

10 (2) The plan must, in particular, set out— (a) the Commissioner’s objectives and priorities for the period to which the plan relates, (b) a statement of any areas of the law which the Commissioner proposes to review under section 4A(1)(a) during that period,

15 (c) details of the other activities or kinds of activities which the Commissioner proposes to undertake during that period, and (d) a timetable for each review and other activity or kind of activity referred to in paragraphs (b) and (c). (3) Before laying a strategic plan before the Parliament, the Commissioner must provide a 20 draft of it to, and invite comments on it from— (a) the Parliamentary corporation, and (b) such other persons as the Commissioner considers appropriate. (4) The Commissioner must arrange for the publication of each strategic plan laid before the Parliament.

25 (5) The Commissioner may, at any time during a 4 year period, review the strategic plan for the period and lay a revised plan for the period before the Parliament. (6) Subsections (3) to (5) apply to a revised plan as they apply to a strategic plan. (7) In this section, “4 year period” means— (a) the period of 4 years beginning with the day on which section 2 comes into force, 30 and (b) each subsequent period of 4 years.

Inquiries 5 Power to conduct inquiries (1) The Commissioner may, in relation to any matter relevant to the Commissioner’s 35 general duty, conduct an inquiry into the policies or practices of— (a) a particular Scottish public authority, (b) Scottish public authorities generally, or (c) Scottish public authorities of a particular description, in connection with the matter.

†569 4 Scottish Commissioner for Human Rights Bill

(2) Subsection (1) is subject to section 6. (3) The matter in relation to which an inquiry is conducted is referred to in this Act as the “subject matter” of the inquiry. (4) Before taking any step in the conduct of an inquiry, the Commissioner must—

5 (a) draw up— (i) terms of reference for the proposed inquiry, and (ii) a summary of the procedure to be followed in the conduct of the inquiry, (b) give notice of— (i) the proposed inquiry,

10 (ii) its terms of reference, and (iii) the summary of procedure, to each relevant Scottish public authority, and (c) publicise— (i) the proposed inquiry,

15 (ii) its terms of reference, and (iii) the summary of procedure, in such manner as the Commissioner thinks appropriate to bring them to the attention of any other persons likely to be affected by the inquiry. (5) An inquiry is to be conducted in public except to the extent that the Commissioner 20 considers it necessary or expedient that any part of the inquiry should be conducted in private. (6) Otherwise, the procedure to be followed in the conduct of an inquiry is to be such as the Commissioner may determine. (7) In subsection (4)(b), “relevant Scottish public authority” means, in relation to a 25 proposed inquiry, any Scottish public authority— (a) which the Commissioner considers is likely to be required under section 7(1) to give evidence, produce documents or provide information for the purposes of the inquiry, or (b) any of whose members, officers or staff the Commissioner considers is likely to 30 be so required.

6 Restrictions as to scope of inquiry (1) The Commissioner may not, in the course of an inquiry (including the report of the inquiry), question the findings of any court or tribunal. (2) The Commissioner may conduct an inquiry into the policies and practices of a particular 35 Scottish public authority only if— (a) the authority is the only Scottish public authority with functions in relation to the subject matter of the inquiry, or (b) the subject matter of the inquiry is about whether the human rights specified in subsection (6) are being respected by the authority.

†570 Scottish Commissioner for Human Rights Bill 5

(3) The Commissioner may not conduct an inquiry into the policies and practices of any Scottish public authority in relation to a particular case. (4) However, subsection (3) does not prevent the Commissioner taking such policies and practices into account in the course of an inquiry.

5 (5) The Commissioner may conduct an inquiry in relation to the management or operation of a particular institution only if— (a) the institution is the only one of its kind in Scotland, or (b) the subject matter of the inquiry is about whether the human rights specified in subsection (6) are being respected at the institution.

10 (6) The human rights referred to in subsections (2)(b) and (5)(b) are those contained in the following, so far as ratified by the United Kingdom, namely— (a) the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by Resolution 39/46 (10th December 1984) of the General Assembly of the United Nations,

15 (b) the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, done at Strasbourg on 26th November 1987, (c) any protocol to those Conventions, and (d) such other international conventions, treaties or other international instruments as Her Majesty may by Order in Council specify for the purposes of this section.

20 (7) No recommendation to make an Order in Council under subsection (6)(d) is to be made to Her Majesty in Council unless a draft of the Order has been laid before and approved by resolution of the Parliament. (8) In this section, “institution” means a prison, hospital, school, college, care home or other such establishment.

25 7 Evidence (1) For the purposes of an inquiry, the Commissioner may require any person specified in subsection (2) to— (a) give oral evidence, (b) produce documents, or

30 (c) otherwise provide information, relevant to the subject matter of the inquiry. (2) Those persons are— (a) any Scottish public authority, (b) any member, officer or member of staff of a Scottish public authority who, in the 35 opinion of the Commissioner, is able to give the evidence, supply the information or produce the documents. (3) The Commissioner may, in the course of an inquiry, take into account any evidence, information or document which the Commissioner has obtained otherwise than by virtue of a requirement imposed under subsection (1), provided the evidence, information or 40 document is relevant to the subject matter of the inquiry.

†571 6 Scottish Commissioner for Human Rights Bill

(4) A person is not required under this section to answer any question, produce any document or provide any information which the person would be entitled to refuse to answer, produce or provide in proceedings in a court in Scotland. (4A) In section 34(2) of the Legal Aid (Scotland) Act 1986 (c.47) (which specifies the 5 purposes for which the restriction in section 34(1) of that Act on disclosure of information furnished to the Scottish Legal Aid Board does not apply), after paragraph (d) insert— “(e) for the purposes of an inquiry by the Scottish Commissioner for Human Rights under section 5 of the Scottish Commissioner for Human Rights 10 Act 2006 (asp 00).”. (5) Schedule 2 makes further provision in connection with requirements under subsection (1).

8 Places of detention: powers of entry, inspection and interview (1) For the purposes of an inquiry, the Commissioner may—

15 (a) enter any place of detention for the purpose of exercising any power under paragraph (b) or (c), (b) inspect the place of detention, and (c) conduct interviews in private with any person detained there, with that person’s consent.

20 (2) In this section, “place of detention” means any premises, vehicle or other place in or at which an individual is or may be detained by, or with the authority or consent of, a Scottish public authority. (3) For the purposes of subsection (2), an individual is detained in or at a place if he or she is imprisoned there or otherwise deprived (to any extent) of his or her liberty to leave the 25 place. (4) For the purposes of subsection (1)(c), an interview is in private if it is outwith the hearing of any person involved in the management or control of the place of detention or working at the place of detention. (5) Schedule 3 makes further provision in connection with the exercise of the powers under 30 subsection (1).

9 Report of inquiry (1) After completing an inquiry other than an excepted inquiry, the Commissioner must lay before the Parliament a report of the inquiry. (2) The report must, in particular, include—

35 (a) the Commissioner’s findings as a result of the inquiry, and (b) any recommendations of the Commissioner in the light of those findings. (3) The report must not make reference to the activities of a specified or identifiable person unless the Commissioner considers that it is necessary to do so in order for the report adequately to reflect the results of the inquiry.

40 (4) Before finalising a report containing such a reference, the Commissioner must— (a) provide the person concerned with—

†572 Scottish Commissioner for Human Rights Bill 7

(i) a draft of the proposed report, and (ii) an opportunity to make representations concerning the proposed report, and (b) consider any representations made. (5) In subsection (1), “excepted inquiry” means an inquiry the subject matter of which falls 5 within section 6(2)(b) or (5)(b).

10 Confidentiality of information (1) Subsection (2) applies to a person who is or has been— (a) a Commissioner or deputy Commissioner, (b) a member of the Commissioner’s staff, or

10 (c) otherwise an agent of the Commissioner. (2) The person must not disclose any information which— (a) has been obtained by or on behalf of the Commissioner for the purposes of an inquiry, and (b) is not at the time of the disclosure, and has not previously been, in the public 15 domain, unless the disclosure is authorised by subsection (3). (3) Disclosure is authorised for the purposes of subsection (2) only so far as— (a) it is made with the consent of the person from whom the information was obtained,

20 (b) it is necessary for the purpose of enabling or assisting the exercise by the Commissioner of any of the Commissioner’s functions under this Act, or (c) it is made for the purposes of legal proceedings, whether criminal or civil (including the purposes of the investigation of any offence or suspected offence). (4) A person who knowingly contravenes subsection (2) commits an offence.

25 (5) A person guilty of an offence under subsection (4) is liable— (a) on summary conviction, to a fine not exceeding the statutory maximum, or (b) on conviction on indictment, to a fine.

Intervention in civil proceedings 11 Power to intervene

30 (1) Subsection (2) applies to civil proceedings before a court, except children’s hearing proceedings. (2) The Commissioner may— (a) with leave of the court, or (b) at the invitation of the court,

35 intervene in the proceedings for the purpose of making a submission to the court on an issue arising in the proceedings.

†573 8 Scottish Commissioner for Human Rights Bill

(3) The Commissioner may intervene under subsection (2) only if it appears to the Commissioner that the issue arising in the proceedings— (a) is relevant to the Commissioner’s general duty, and (b) raises a matter of public interest.

5 (4) An application by the Commissioner for leave under subsection (2)(a) must set out— (a) the issue arising in the proceedings which the Commissioner intends to address, and (b) a summary of the submission that the Commissioner intends to make. (5) An invitation under subsection (2)(b) must set out the issue arising in the proceedings 10 upon which the court seeks a submission. (6) The court may grant leave for or invite the Commissioner to intervene under subsection (2) only if it is satisfied that the intervention of the Commissioner is likely to assist the court. (7) Further provision as to the procedure in any intervention under subsection (2), including 15 in particular provision as to the form that any submission by the Commissioner is to take, may be prescribed by Act of Sederunt. (8) Subsection (2) is without prejudice to the Commissioner’s capacity to intervene in any proceedings before any court or tribunal under an enactment or in accordance with the practice of the court or tribunal.

20 (9) In subsection (1)— “civil proceedings” includes inquiries instituted under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c.14), “children’s hearing proceedings” means any proceedings on an application made to the sheriff, and any other proceedings before the sheriff court or Court of 25 Session (whether on appeal or otherwise), under any provision of Part II of the Children (Scotland) Act 1995 (c.36) in relation to a children’s hearing, “court” means the Court of Session and sheriff court, both as courts of first instance and appeal, and the Land Court.

Reports

30 12 Annual report (1) The Commissioner must lay before the Parliament annually a general report on the exercise of the Commissioner’s functions during the year to which the report relates (“the reporting year”). (2) The report must, in particular, include—

35 (a) a summary of any inquiries conducted by the Commissioner during the reporting year, and (b) a summary of any other activities undertaken by the Commissioner during that year in pursuance of the Commissioner’s general duty. (3) In preparing a report under this section, the Commissioner must comply with any 40 directions given by the Parliamentary corporation as to the form and content of the report.

†574 Scottish Commissioner for Human Rights Bill 9

13 Publication of reports (1) The Commissioner must arrange for the publication of reports laid by it before the Parliament. (2) The Commissioner may publish other reports on matters relevant to the Commissioner’s 5 general duty.

General 15 Protection from actions for defamation (1) For the purposes of the law of defamation— (a) any statement made by the Commissioner—

10 (i) in conducting an inquiry, (ii) in communicating with any person for the purposes of an inquiry, or (iii) in a report of an inquiry, has absolute privilege, (b) any other statement made by the Commissioner in pursuance of the purposes of 15 this Act has qualified privilege, and (c) any statement made to the Commissioner in pursuance of those purposes has qualified privilege. (2) In subsection (1), “statement” has the same meaning as in the Defamation Act 1996 (c.31).

20 16 Giving of notice (1) Any notice to be given to any person under any provision of this Act must be given— (a) in writing, and (b) by one of the means specified in subsection (2). (2) Those means are—

25 (a) delivering the notice to the person, (b) sending it by registered post or recorded delivery service addressed to the person at— (i) in the case of an individual, the person’s usual or last known address or the person’s place of business or work,

30 (ii) in any other case, the person’s registered or principal office, (c) sending it to the person by some other means (including electronic means) which the person giving the notice considers likely to cause it to be delivered on the same or next day. (3) A notice which is given by electronic means is to be treated as being in writing if it is 35 received in a form which is legible and capable of being used for subsequent reference. (4) A notice given by a means specified in subsection (2)(c) is, unless the contrary is proved, to be presumed to be delivered on the next working day following the day on which it is sent.

†575 10 Scottish Commissioner for Human Rights Bill

(5) In subsection (4), “working day” means any day other than a Saturday, a Sunday or a day which, under the Banking and Financial Dealings Act 1971 (c.80), is a bank holiday in Scotland.

17 Meaning of “Scottish public authority” 5 In this Act, “Scottish public authority” means— (a) any body or office which, or office-holder who, is— (i) a part of the Scottish Administration, or (ii) a Scottish public authority with mixed functions or no reserved functions, and

10 (b) any other person who is a public authority within the meaning of the Human Rights Act 1998 (c.42), but only in so far as the public functions exercisable by the person— (i) are exercisable in or as regards Scotland, and (ii) do not relate to reserved matters.

15 18 Interpretation In this Act, except where the context requires otherwise— “the Commissioner” means the Scottish Commissioner for Human Rights (appointed under section 1(1)), “Convention rights” has the meaning given in section 1 of the Human Rights Act 20 1998 (c.42), “deputy Commissioner” means a deputy Scottish Commissioner for Human Rights (appointed under section 1(3)), “human rights” has the meaning given in section 2(2), “inquiry” means an inquiry under section 5,

25 “Parliament” means the Scottish Parliament, “Parliamentary corporation” means the Scottish Parliamentary Corporate Body, “Scottish public authority” has the meaning given in section 17, “subject matter”, in relation to an inquiry, is to be construed in accordance with section 5(3).

30 19 Short title, Crown application and commencement (1) This Act may be cited as the Scottish Commissioner for Human Rights Act 2006. (2) This Act binds the Crown. (3) This Act (except this section) comes into force on such day as Her Majesty may by Order in Council appoint.

35 (4) An Order in Council under subsection (3) may— (a) appoint different days for different purposes, and (b) contain transitional and transitory provision.

†576 Scottish Commissioner for Human Rights Bill 11 Schedule 1—Scottish Commissioner for Human Rights

SCHEDULE 1 (introduced by section 1(6))

SCOTTISH COMMISSIONER FOR HUMAN RIGHTS

Status

5 1 The Commissioner, deputy Commissioners and the Commissioner’s staff— (a) are not servants or agents of the Crown, and (b) have no status, immunity or privilege of the Crown.

Independence 2 (1) The Commissioner, in the exercise of the Commissioner’s functions, is not to be subject 10 to the direction or control of— (a) any member of the Parliament, (b) any member of the Scottish Executive, or (c) the Parliamentary corporation. (2) Sub-paragraph (1) is subject to section 12(3), paragraphs 8(2)(b), 10, 11(2), (3) and (5) 15 and 14(1) of this schedule and paragraph 5 of schedule 2.

Disqualification 3 (1) A person is disqualified from appointment, and from holding office, as Commissioner or deputy Commissioner if that person is— (a) a member of the House of Commons,

20 (b) a member of the Scottish Parliament, or (c) a member of the European Parliament. (2) A person is also disqualified from such appointment if that person has, in the year preceding nomination, held any of the offices set out in sub-paragraph (1)(a) to (c).

Terms of office and remuneration

25 4 (1) The Commissioner and each deputy Commissioner— (a) holds office for such period not exceeding five years as the Parliamentary corporation, at the time of appointment, may determine, and (b) is eligible for reappointment to the same office (whether the reappointment is for a consecutive period or otherwise) but reappointment for a third period is not 30 competent. (2) A Commissioner and each deputy Commissioner may be— (a) relieved of office by Her Majesty at the officer’s request, or (b) removed from office by Her Majesty if condition A or B is satisfied. (3A) Condition A is that—

†577 12 Scottish Commissioner for Human Rights Bill Schedule 1—Scottish Commissioner for Human Rights

(a) the Parliamentary corporation is satisfied that the Commissioner has breached the Commissioner’s terms of appointment or, as the case may be, the deputy Commissioner has breached the deputy Commissioner’s terms of appointment, and

5 (b) the Parliament resolves that the Commissioner or, as the case may be, the deputy Commissioner should be removed from office for that reason. (3B) Condition B is that the Parliament resolves that it has lost confidence in the Commissioner or, as the case may be, deputy Commissioner. (3C) A resolution under sub-paragraph (3A)(b) or (3B), if passed on division, must be voted 10 for by not less than two thirds of those voting. (4) The Commissioner and each deputy Commissioner is entitled to— (a) such remuneration, and (b) such allowances, as the Parliamentary corporation may determine.

15 (6) In other respects, the Commissioner and each deputy Commissioner holds office on such terms and conditions as the Parliamentary corporation may determine.

Acting Commissioner 5 (1) Where the office of Commissioner is vacant, the Parliamentary corporation may appoint a person (whether or not a deputy Commissioner or a member of the Commissioner’s 20 staff) to be acting Commissioner until a new Commissioner is appointed. (2) A person who is disqualified from appointment as Commissioner is also disqualified from appointment as acting Commissioner. (3) A person appointed to be acting Commissioner— (a) may be relieved of office at that person’s request,

25 (b) may be removed from office by the Parliamentary corporation by notice given by it, (c) in other respects, holds office on such terms and conditions as the Parliamentary corporation may determine, and (d) while holding that office, is to be treated for all purposes, except those of 30 paragraphs 4, 6 and 7(a), as the Commissioner.

Pensions etc. 6 (1) The Parliamentary corporation may make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a Commissioner or deputy Commissioner and such arrangements may include, in 35 particular— (a) the making of contributions or payments towards provision for such pensions, allowances, or gratuities, and (b) the establishing and administering of one or more pension schemes.

†578 Scottish Commissioner for Human Rights Bill 13 Schedule 1—Scottish Commissioner for Human Rights

(2) References in sub-paragraph (1) to pensions, allowances and gratuities include references to, as the case may be, pensions, allowances or gratuities by way of compensation for loss of office.

Validity of actings

5 7 The validity of any acts of the Commissioner or a deputy Commissioner is not affected by any— (a) defect in the nomination of the Commissioner or, as the case may be, deputy Commissioner, or (b) disqualification from appointment as Commissioner or, as the case may be, deputy 10 Commissioner.

General powers 8 (1) The Commissioner may do anything which appears necessary or expedient for the purpose of, or in connection with, or which appears conducive to, the exercise of the Commissioner’s functions.

15 (2) In particular, the Commissioner may— (a) enter into contracts, and (b) with the consent of the Parliamentary corporation, acquire and dispose of land.

Delegation 9 (1) Any function of the Commissioner may be exercised on the Commissioner’s behalf—

20 (a) by any person (whether or not a deputy Commissioner or a member of the Commissioner’s staff) authorised by the Commissioner to do so, and (b) to the extent so authorised. (2) Sub-paragraph (1) does not affect the Commissioner’s responsibility for the exercise of the Commissioner’s functions.

25 Location of office 10 (1) The Commissioner’s determination of the location of the Commissioner’s office premises is subject to the approval of the Parliamentary corporation. (2) In determining the location of the Commissioner’s office premises under sub-paragraph (1), the Commissioner must, with a view to ensuring the economic, efficient and 30 effective use of the Commissioner’s resources, have regard to the desirability of sharing premises with another public body.

Staff 11 (2) The Commissioner may, with the consent of the Parliamentary corporation as to numbers, appoint staff.

35 (3) The appointment of staff is to be on such terms and conditions as the Commissioner may, with the approval of the Parliamentary corporation, determine.

†579 14 Scottish Commissioner for Human Rights Bill Schedule 1—Scottish Commissioner for Human Rights

(5) The Commissioner may, with the approval of the Parliamentary corporation, make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of staff. (6) References in sub-paragraph (5) to pensions, allowances and gratuities include 5 references to, as the case may be, pensions, allowances or gratuities by way of compensation for loss of employment.

Accountable officer 12 (1) The Parliamentary corporation must designate the Commissioner, a deputy Commissioner or a member of the Commissioner’s staff as the accountable officer for 10 the purposes of this paragraph. (2) The functions of the accountable officer are— (a) signing the accounts of the expenditure and receipts of the Commissioner, (b) ensuring the propriety and regularity of the finances of the Commissioner, (c) ensuring that the resources of the Commissioner are used economically, 15 efficiently and effectively, and (d) the duty set out in sub-paragraph (3), and the accountable officer is answerable to the Parliament for the exercise of those functions. (3) Where the accountable officer is required to act in some way but considers that to do so 20 would be inconsistent with the proper performance of the functions specified in sub- paragraph (2)(a) to (c), the accountable officer must— (a) obtain written authority from the Commissioner before taking the action, and (b) send a copy of the authority as soon as possible to the Auditor General for Scotland.

25 Finance 13 (1) The Parliamentary corporation is to pay— (a) the remuneration and allowances of the Commissioner and any deputy Commissioners, (b) any expenses incurred by the Commissioner in the exercise of the functions of the 30 Commissioner, so far as those expenses are not met out of sums received and applied by the Commissioner under section 4(3), and (c) any sums payable by virtue of paragraph 5(3)(c) to, or in respect of, a person who— (i) is appointed as acting Commissioner, or

35 (ii) has ceased to hold such office. (2) The Commissioner must, before the start of each financial year, prepare proposals for the Commissioner’s expenditure during the year and send the proposals to the Parliamentary corporation for approval by such date as the Parliamentary corporation may determine.

†580 Scottish Commissioner for Human Rights Bill 15 Schedule 1—Scottish Commissioner for Human Rights

(3) The Commissioner may, in the course of a financial year, prepare revised proposals for the Commissioner’s expenditure during the remainder of the year and send the proposals to the Parliamentary corporation for approval. (4) Sub-paragraph (1)(b) does not require the Parliamentary corporation to pay any 5 expenses incurred by the Commissioner which exceed, or are otherwise not covered by, any proposals approved under sub-paragraph (2) or (3). (5) However, the Parliamentary corporation may pay those expenses. (6) The financial year of the Commissioner is— (a) the period beginning with the date on which the first Commissioner is appointed 10 and ending with 31st March next following that date, and (b) each successive period of 12 months ending with 31st March.

Accounts and audit 14 (1) The Commissioner must, in accordance with such directions as the Scottish Ministers may give—

15 (a) keep proper accounts and accounting records, (b) prepare annual accounts in respect of each financial year, and (c) send a copy of the annual accounts to the Auditor General for Scotland for auditing. (3) If requested by any person, the Commissioner must make available at any reasonable 20 time, and without charge, in printed or electronic form, the audited accounts, so that they may be inspected by that person.

Scottish Public Services Ombudsman 15 In the Scottish Public Services Ombudsman Act 2002 (asp 11), in schedule 2 (which lists the authorities subject to investigation under that Act), in Part 2 (entries amendable 25 by Order in Council), after paragraph 38 insert— “38A The Scottish Commissioner for Human Rights.”.

Freedom of information 16 In the Freedom of Information (Scotland) Act 2002 (asp 13), in schedule 1 (which lists the Scottish public authorities subject to that Act), in Part 7 (other authorities), after 30 paragraph 81 insert— “81A The Scottish Commissioner for Human Rights.”.

†581 16 Scottish Commissioner for Human Rights Bill Schedule 2—Inquiries: supplementary provision as to evidence

SCHEDULE 2 (introduced by section 7(5))

INQUIRIES: SUPPLEMENTARY PROVISION AS TO EVIDENCE

Requirements to give evidence etc.

5 1 The Commissioner may impose a requirement on a person under section 7(1) by giving notice to the person specifying— (a) where the person is required to give oral evidence— (i) the time and place at which the person is to attend to give evidence, and (ii) the particular matter or matters about which the person is required to give 10 evidence, (b) where the person is required to produce a document or documents— (i) the document, or types of documents, which the person is to produce, (ii) the date by which it or they must be produced, and (iii) the particular matter or matters in connection with which they are required,

15 (c) where the person is required otherwise to provide information— (i) the nature of the information required, (ii) the date by which it must be provided, and (iii) the particular matter or matters in connection with which the information is required.

20 Cancellation of requirements notified under paragraph 1 2 (1) A person to whom notice has been given under paragraph 1 may apply to the sheriff for cancellation of any requirement imposed by the notice. (2) On such an application, the sheriff may cancel the requirement if satisfied that the requirement is—

25 (a) unnecessary having regard to the purposes of the inquiry to which the notice relates, (b) undesirable for reasons of national security, or (c) otherwise unreasonable.

Administration of oaths

30 3 The Commissioner may— (a) administer an oath to any person giving evidence to the Commissioner for the purposes of an inquiry, and (b) require any such person to take an oath.

†582 Scottish Commissioner for Human Rights Bill 17 Schedule 3—Places of detention: powers of entry, inspection and interview

Obstruction and contempt 4 (1) Sub-paragraph (3) applies where any person to whom notice has been given under paragraph 1— (a) refuses or fails, without reasonable excuse, to comply with any requirement 5 specified in the notice, (b) refuses or fails, without reasonable excuse, when attending to give evidence as required by the notice— (i) to take an oath on being required to do so under paragraph 3(b), or (ii) to answer any question relevant to any matter specified in the notice, or

10 (c) deliberately alters, suppresses, conceals or destroys any document which the person is required by the notice to produce. (2) Sub-paragraph (3) also applies where the Commissioner considers that any such person as is mentioned in sub-paragraph (1) is likely to do any of the things specified in paragraphs (a) to (c) of that sub-paragraph.

15 (3) Where this sub-paragraph applies, the Commissioner may report the matter to the Court of Session. (4) On such a report, the Court may, after hearing any evidence or representations on the matter, (either or both)— (a) make such order for enforcement as it sees fit,

20 (b) deal with the matter as if it were a contempt of the Court.

Allowances and expenses 5 The Commissioner may pay to persons giving evidence, producing documents or providing information pursuant to a notice given under paragraph 1 such allowances and expenses as it may, with the approval of the Parliamentary corporation, determine.

25 SCHEDULE 3 (introduced by section 8(5))

PLACES OF DETENTION: POWERS OF ENTRY, INSPECTION AND INTERVIEW

Evidence of authority 2 The Commissioner or any other person entitled to exercise any power under section 8(1) 30 (referred to in this schedule as “an authorised person”) must, if required to do so, produce written evidence of that entitlement. 2A A person required to produce written evidence of entitlement under paragraph 2 cannot exercise the power under section 8(1) to which the entitlement relates until the person produces such evidence.

†583 18 Scottish Commissioner for Human Rights Bill Schedule 3—Places of detention: powers of entry, inspection and interview

Obstruction and contempt 4 (1) Where any person intentionally obstructs the Commissioner or an authorised person acting in the exercise of a power under section 8(1), the Commissioner may report the matter to the Court of Session.

5 (2) On such a report, the Court may, after hearing any evidence or representations on the matter, (either or both)— (a) make such order for enforcement as it sees fit, (b) deal with the matter as if it were a contempt of the Court.

†584 †585 Scottish Commissioner for Human Rights Bill [AS AMENDED AT STAGE 2]

An Act of the Scottish Parliament to provide for the appointment and functions of the Scottish Commissioner for Human Rights.

Introduced by: Cathy Jamieson On: 7 October 2005 Supported by: Robert Brown Bill type: Executive Bill

©

SP Bill 48A Session 2 (2006) †586 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

SCOTTISH COMMISSIONER FOR HUMAN RIGHTS BILL [AS AMENDED AT STAGE 2]

——————————

REVISED EXPLANATORY NOTES

CONTENTS

1. As required under Rule 9.7.8A of the Parliament‘s Standing Orders, these revised Explanatory Notes are published to accompany the Scottish Commissioner for Human Rights Bill as amended at Stage 2.

INTRODUCTION

2. These Explanatory Notes have been prepared by the Human Rights and Law Reform Branch on behalf of the Scottish Executive. Their purpose is to assist the reader of the Bill and to help inform debate on it. As such they do not form part of the Bill and have not been endorsed by the Parliament.

3. The notes should be read in conjunction with the Bill. They are not, and are not intended to be, a comprehensive description of the Bill itself. Wherever a section or schedule, or part of a schedule does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND TO THE BILL

4. The Bill establishes a Scottish Commissioner for Human Rights (SCHR) (and provides for there to be up to two deputy Commissioners). The Commissioner will be independent, with the ability to choose which issues are investigated and reported upon. The Commissioner will be accountable to the Scottish Parliament and will submit annual reports summarising the actions and inquiries undertaken in the previous year. The Commissioner will also periodically submit strategic plans to the Parliament.

5. The Commissioner‘s general duty, as set out in section 2, is to promote awareness and understanding of, and respect for, human rights. The Bill gives the Commissioner certain other specific functions (see sections 4, 4A, 5 and 11) in support of the general duty. These include: monitoring law, policy and practice; providing information, advice, guidance, and education; carrying out inquiries; and intervening in civil court proceedings.

SP Bill 48A–EN 1 Session 2 (2006) 587 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

6. The Commissioner will be able conduct inquiries into general human rights issues, but will not be able to investigate, support or rule on individual cases. The Commissioner will have the ability to require information in support of inquiries and a right of entry to places of detention in certain cases.

7. The Commissioner will deal only with human rights issues relating to devolved matters. However, this remit will include the full range of human rights instruments to which the UK is signatory.

8. The SCHR will be able to liaise with the proposed Commission for Equality and Human Rights (CEHR) for Great Britain. The CEHR will begin operating in October 2007 and will not be able to act on human rights in relation to matters that are devolved to the Scottish Parliament, unless it has the consent of the Commissioner.

COMMENTARY ON SECTIONS

Section 1: Scottish Commissioner for Human Rights

9. Section 1 establishes the office of the Scottish Commissioner for Human Rights. He or she is to be an individual appointed by Her Majesty on the nomination of the Scottish Parliament.

10. Subsections (3) and (4) allow for up to two deputy Commissioners to be appointed at any time.

11. Subsection (5) allows a deputy Commissioner to perform the Commissioner’s functions in the Commissioner’s absence. In doing so, a deputy Commissioner is to be treated like the Commissioner in all respects (except in relation to terms of office and pensions).

12. Further detail about the Commissioner and the deputy Commissioners is contained in schedule 1 to the Bill.

Section 2: General duty to promote human rights

13. Subsection (1) stipulates that the general duty of the Commissioner is to promote human rights. This is supplemented by subsection (2A) which makes clear that the duty is to promote awareness and understanding of and respect for human rights.

14. Subsection (2) defines the phrase “human rights” in two parts. “Convention rights” means all Articles and Protocols of the European Convention on Human Rights listed in section 1 of the Human Rights Act 1998. This includes the right to life and the prohibition of torture, slavery and forced labour, amongst other rights. “Other human rights” are (non-Convention) human rights contained in any international instrument (e.g. an instrument enacted by the United Nations, the Council of Europe or the European Union) which have been ratified by the UK.

2 †588 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

15. Subsection (3) stipulates that the Commissioner’s priority will be Convention rights and human rights of those groups in society whose human rights are not, in the Commissioner’s opinion, otherwise being sufficiently promoted. Convention rights are important because, as a result of the Human Rights Act 1998 and the Scotland Act 1998, they are directly enforceable through the domestic courts.

Section 4: Information, guidance, education, etc.

16. Subsection (1)(a) and (b) provides that the Commissioner may, in pursuing the general duty set out in section 2(1), publish or otherwise disseminate information or ideas and provide advice or guidance.

17. Under these subsections, the Commissioner could, for example, publish information leaflets, internet resources, or educational materials; send group emails; make presentations at conferences; set up awareness-raising campaigns; issue guidance material; or offer advice through correspondence or by telephone.

18. As detailed in subsection (1)(c), the Commissioner will be able to conduct research. The Commissioner could, for instance, conduct statistical research on court cases with human rights aspects.

19. Subsection (1)(d) provides that the Commissioner can provide education and training.

20. Subsection (2) states that the Commissioner can charge reasonable fees for providing any of the services described in the previous subsection. Any fees paid to the Commissioner are to be put towards the costs of doing the things in paragraphs (a) to (d) of subsection (1).

Section 4A: Monitoring of law, policies and practices

21. The Commissioner is empowered by section 4A to review any area of the law of Scotland and the policies and practices of any Scottish public authorities. This function will allow a process of reviewing and reporting, and the Commissioner will be free to choose which issues he or she examines, provided that those issues are within his or her remit. The term ‘Scottish public authority’ is defined in section 17.

22. Section 4A also empowers the Commissioner to recommend changes to the law and to the policies and practices of public authorities. These recommendations will not be legally binding and there will be no obligation upon public authorities to seek guidance from the Commissioner, nor will there be any compulsion upon public authorities to implement the Commissioner’s recommendations.

23. Subsection (2) requires the Commissioner to consult the Scottish Law Commission before undertaking any such review of the law.

3 †589 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

Section 14: Power to co-operate etc. with others

24. This section empowers the Commissioner to consult, act jointly with, co-operate with or assist any other person. Subsection (2) further states that the Commissioner must attempt to ensure so far as practicable that activity undertaken does not unnecessarily duplicate the work of other statutory agencies with shared interests or remits that overlap with that of the Commissioner.

Section 4B: Strategic plans

25. The Commissioner is required by subsection (1) to lay a strategic plan before the Parliament once every four years detailing his or her proposals for fulfilling the Commissioner’s general duty. Subsection (7) defines such periods as beginning with the day on which section 2, which describes the Commissioner’s general duty, comes into force, and each subsequent period of four years thereafter.

26. In terms of subsection (2) the plan will set out the Commissioner’s objectives and priorities for the period. It must also provide details of any areas of the law the Commissioner intends to review, and any other activities relating to the Commissioner’s general duty, alongside a timetable for these activities.

27. Subsection (3) requires the Commissioner, before laying the strategic plan before the Parliament, to provide draft copies to the Parliamentary corporation and any other person that the Commissioner considers appropriate, and to invite them to submit comments.

28. Subsection (4) requires the Commissioner to arrange for the publication of each plan laid before the Parliament.

29. Under subsection (5) the Commissioner can review the strategic plan at any time and lay a revised plan for the period before the Parliament. Subsection (6) provides that in that event the provisions in subsections (3) to (5) about consultation, publication and review will apply in relation to that revised plan.

Section 5: Power to conduct inquiries

30. Subsection (1) states that the Commissioner can conduct inquiries into the policies or practices of a particular Scottish public authority, Scottish public authorities generally or Scottish public authorities of a particular description. Section 6 establishes certain restrictions upon these powers.

31. Subsection (4) sets out the procedure before starting an inquiry, requiring the Commissioner to draw up terms of reference and a summary of the procedure to be followed. The Commissioner must give notice of the proposed inquiry and its terms of reference and procedure to the relevant Scottish public authorities, and publicise such details in a manner that the Commissioner feels is appropriate to bring them to the attention of others affected by the inquiry.

4 †590 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

32. ‘Relevant Scottish public authority’ is defined in subsection (7) to mean any public body which the Commissioner believes is likely to be required to give evidence or provide other information, or which has members, officers or staff who are likely to be so required.

33. Subsection (5) states that inquiries should be conducted in public but reserves to the Commissioner the ability to hear evidence in private.

Section 6: Restrictions as to scope of inquiry

34. Section 6 sets out various restrictions on the power of the Commissioner to conduct inquiries.

35. Subsection (1) states that the Commissioner cannot question the findings of any court or tribunal while conducting an inquiry, including in his or her final report.

36. The remit of the Commissioner restricts inquiries to the general policies and procedures of public authorities, as opposed to individual cases. However, an inquiry into the policies and practices of a particular Scottish public authority may be conducted if it is the only body exercising the functions being investigated, as set down in subsection (2)(a).

37. Additionally, inquiries may be initiated into the policies and practices of a particular Scottish public authority if the specific subject matter of the inquiry is to assess compliance with particular human rights (as defined in subsection (6)). The Commissioner, as previously stated, cannot conduct an inquiry into an individual case, although this does not bar the Commissioner from taking the relevant policies and practices into account during an inquiry.

38. Subsection (5) establishes similar rules for investigating the management and operation of institutions such as prisons, hospitals, schools, colleges and care homes. The Commissioner may only launch an inquiry into an individual institution if the institution in question is the only one of its kind in Scotland, or if the subject matter of the inquiry is to assess compliance with particular human rights (as defined in subsection (6)) at that institution.

39. Subsection (6) details the particular human rights referred to in subsections (2)(b) and (5)(b). These are contained in two of the international human rights instruments to which the UK is signatory. These instruments relate to the prevention of torture and degrading treatment. Subsections (2)(b) and (5)(b) give the Commissioner power to conduct inquiries into particular public authorities and institutions to ensure compliance and good practice in relation to these instruments. Provision is also made for further human rights instruments to be added to the list in subsection (6) by an Order in Council. Such an Order would be subject to affirmative procedure in Parliament.

Section 7: Evidence

40. Subsections (1) and (2) permit the Commissioner to require any Scottish public authority or member, officer or staff member of such an authority to give oral evidence, produce documents or to provide any other form of information deemed relevant to an inquiry.

5 †591 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

41. Subsection (3) allows the Commissioner to consider information freely volunteered by public authorities or members of the public, provided that information is relevant to the inquiry.

42. Subsection (4) states that those required to give evidence by the Commissioner are not required to answer any question, produce any document or provide any information which those persons would be entitled to refuse to (as the case may be) answer, produce or provide in proceedings in a court in Scotland.

43. Subsection (4A) amends the Legal Aid (Scotland) Act 1986 to provide that disclosure by the Scottish Legal Aid Board to the Commissioner of information obtained by Board in the exercise of its functions will not be a criminal offence.

44. Further provision in relation to the requirement to provide evidence is made in Schedule 2.

Section 8: Places of detention: powers of entry, inspection and interview

45. This section empowers the Commissioner to enter places of detention during the conduct of an inquiry. In terms of this Bill, ‘places of detention’ means any premises, vehicle or other place where a person can be detained on the authority or consent of a Scottish public authority. Subsection (3) clarifies this point by defining a person as being detained in a place “if he or she is imprisoned there or otherwise deprived (to any extent) of his or her liberty to leave the place”.

46. Specifically, subsection (1) empowers the Commissioner to inspect such places of detention and to conduct private interviews with any person detained there, subject to that person’s consent. Subsection (4) states that an interview is “in private” if it is conducted outwith the hearing of anyone involved in the management or control of, or working at, the place of detention. Schedule 3 makes further provision in relation to these powers.

Section 9: Report of inquiry

47. Upon completion of an inquiry, subsection (1) requires the Commissioner to lay a report of his or her findings before the Parliament. Section 13(1) further stipulates that such reports must be published by the Commissioner.

48. Subsection (2) states that the report must include the Commissioner’s findings and any resultant recommendations. Subsection (3) prohibits reporting upon the activities of a specified or identifiable person, unless the Commission considers that it is necessary to do so in order for the report to adequately reflect the results of the inquiry.

49. If the Commissioner chooses to exercise the capacity to identify individuals then it must furnish those persons with a draft of the proposed report and provide them with an opportunity to make representation concerning the proposed report. The Commissioner must consider any such representations before proceeding with publication.

6 †592 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

50. The contents of the Commissioner’s reports are otherwise left to the judgement of the Commissioner.

Section 10: Confidentiality of information

51. This section states that neither the Commissioner, nor any agent of the Commissioner, past or present, shall disclose any information obtained in the course of the Commissioner’s activities unless such a disclosure is authorised by subsection (3).

52. Subsection (3)(a) authorises disclosure of information provided that it is made with the consent of the person who provided it. Subsections (3)(b) and (c) further allow disclosure of information if the Commissioner deems it necessary for the furtherance of his or her functions or if it is made for the purposes of civil or criminal legal proceedings.

53. Subsection (2) identifies information that is subject to these rules. Information which has been obtained by or on behalf of the Commissioner for the purposes of an inquiry should not be disclosed unless at least one of the conditions described above are met. But subsection (2)(b) states that information which has previously been in the public domain is not covered by these restrictions.

54. As stated in subsection (4), a person who knowingly discloses information that should not be made public in terms of this section commits an offence. Subsection (5) details the penalties that can be imposed for an unauthorised disclosure of information.

Section 11: Power to intervene

55. This section describes the process by which the Commissioner may intervene in civil proceedings before a court, with the exception of children’s hearing proceedings. The Commissioner may only make a submission to the court on an issue arising in proceedings which the Commissioner considers are relevant to his or her general duty and raise a matter of public interest.

56. Such interventions can only be made with leave of or at the invitation of the court – the Commissioner has no power to intervene in proceedings without the court’s permission.

57. When applying for leave to intervene, the Commissioner must inform the court of the issue arising in the proceedings which the Commissioner believes to be relevant to his or her general duty. The Commissioner is further required to provide the court with a summary of the submission that he or she intends to make.

58. If the Commissioner is invited to intervene, then the court must set out the issue arising in the proceedings upon which the court seeks a submission. The court may only grant leave for or invite the Commissioner to intervene if it is satisfied that such an intervention is likely to assist the court.

7 †593 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

59. Further rules relating to the procedure to be followed in an intervention can be made by the Court of Session in an Act of Sederunt.

60. As stated in subsection (8), this section is without prejudice to any capacity of the Commissioner to intervene in any proceedings before any court or tribunal in terms of any existing enactment or the practice of the court or tribunal.

Section 12: Annual report

61. In addition to issuing reports upon the completion of its inquiries, the Commissioner must also provide the Parliament with an annual report.

62. The report will include a summary of any inquiries that the Commissioner has conducted in the past year and a summary of any other activities undertaken.

63. Subsection (3) obliges the Commissioner to comply with any directions given by the Parliamentary corporation regarding the form and content of the report. As with reports on inquiries, the Commissioner must publish the annual reports.

Section 13: Publication of reports

64. Subsection (1) requires the Commissioner to arrange for the publication of all reports submitted to the Parliament. It is likely that any reports would be published in either electronic format or hard copy.

65. Subsection (2) enables the Commissioner to publish any other report relating to his or her functions.

Section 15: Protection from actions for defamation

66. Subsection (1)(a) provides the Commissioner with absolute privilege for all reports of inquiries, and any other statements and communications in relation to those inquiries. The provision of absolute privilege places a bar on a person’s right to pursue an action of defamation in respect of such statements made by the Commissioner.

67. Subsection (1)(b) provides the Commissioner with qualified privilege for any other statement made in pursuance of the purposes of the Bill, and subsection (1)(c) confers the same protection upon any statement made to the Commissioner for the same purposes. Under qualified privilege the Commissioner can make statements without fear of action provided that such statements are not motivated by malice or intent to injure. ‘Statement’ has the same meaning as in the Defamation Act 1996 (c.31) and therefore includes words, pictures, visual images, gestures or any other method of signifying meaning.

Section 16: Giving of notice

68. This section sets out the processes that the Commissioner must follow when giving notices.

8 †594 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

69. Any notice to be given to any person under any provision of the Bill must be given in writing, and must be either delivered in person or sent by registered post, recorded delivery, email or some other means which the person giving the notice considers likely to cause it to be delivered on the same or the following day. In the case of an individual, notice should be served at the person’s usual or last known address, or the person’s place of business or work. In any other case, notice should be served at the person’s registered or principal office.

70. If notice is given by electronic means such as email, it will be treated as being in writing if it is received in a form which is legible and can be subsequently used for reference. Unless evidence to the contrary is provided, notice given by a means described in subsection (2)(c) is presumed to be delivered on the next working day following the day on which it is sent. In the Bill “working day” means any day apart from a Saturday, a Sunday or an official bank holiday in Scotland.

Section 17: Meaning of “Scottish public authority”

71. This section defines “Scottish public authority”. Any body, office or office holder who is a part of the Scottish Administration is considered a Scottish public authority. Also included is any Scottish public authority (within the meaning of the Scotland Act 1998) with mixed, i.e. devolved and reserved functions, or no reserved functions.

72. Additionally, any other person defined as a public authority within the meaning of the Human Rights Act 1998 is considered a “Scottish public authority” but only insofar as the functions of that person relate to Scotland and do not relate to reserved matters.

Section 19: Short title, Crown application and commencement

73. The Act that results from this Bill will be cited as the Scottish Commissioner for Human Rights Act 2006. It will bind the Crown and, excepting this section, come into force on such a day as Her Majesty may by Order in Council appoint.

74. Such an Order in Council may appoint days for different purposes and contain transitional and transitory provision.

Schedule 1: Scottish Commissioner for Human Rights

75. Schedule 1 makes detailed provision concerning the status, independence, remuneration, terms of appointment and general powers of the Commissioner. The Schedule also details various administrative and procedural matters.

76. Paragraph 1 of the Schedule makes clear that neither the Commissioner, nor any deputy Commissioner or staff member, should be regarded as a servant or agent of the Crown or have the status, immunity or privilege of the Crown.

77. The second paragraph states that the Commissioner, in the exercise of his or her functions, is not subject to the direction or control of any member of the Parliament, the Scottish Executive or the Parliamentary corporation. This is qualified because certain other provisions

9 †595 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

(section 12(3) and paragraphs 8(2)(b), 10, 11(2), (3) and (5)) allow the Parliamentary corporation some control over the Commissioner, including the form of the Commissioner’s annual report and the location of the Commissioner’s principal office, and sub-paragraph (1) of paragraph 14 requires that the Commissioner comply with such directions as the Scottish Ministers may give regarding accounts and accounting records.

78. Paragraph 3 deals with circumstances which would disqualify a person from appointment and holding office as Commissioner or deputy Commissioner. No person may become Commissioner or deputy Commissioner if that person is a member of the House of Commons, the Scottish Parliament or the European Parliament. Persons who have held any of these offices in the year preceding nomination are also disqualified, as would be any Commissioner or deputy Commissioner who was elected to such a post during his or her tenure.

79. Paragraph 4 lists details of terms of office and remuneration for Commissioners and Deputy Commissioners, stating that each may hold office for a period of up to five years and is eligible for reappointment when that period expires. A Commissioner or deputy Commissioner may be appointed for two terms of up to five years each but may not be reappointed for a third period.

80. Paragraph 4 also provides that the Commissioner or deputy Commissioner can be removed from office by Her Majesty or at his or her request, or if one of two conditions is met.

81. The first condition, in sub-paragraph (3A), states that a Commissioner or deputy Commissioner may be removed from office if the Parliamentary corporation is satisfied that the office holder has breached his or her terms of appointment and the Parliament resolves that the Commissioner or deputy Commissioner should be removed.

82. The second condition, in sub-paragraph (3B), states that the Parliament may remove a Commissioner or deputy Commissioner from office if it resolves that it has lost confidence in him or her. In both cases, if passed on division, such a resolution must be voted for by not less than two thirds of those voting.

83. Paragraph 4 also contains details regarding the Commissioner’s and deputy Commissioner’s salaries, to the effect that each is entitled to such remuneration and allowances as are determined by the Parliamentary corporation. Other terms and conditions of holding office are to be determined by the Parliamentary corporation.

84. Paragraph 5 establishes the procedure to be followed if the office of the Commissioner is vacant. The Parliamentary corporation may appoint any person to be the acting Commissioner until a new Commissioner is appointed. The role of acting Commissioner is subject to the same basic strictures relating to appointment as a Commissioner or deputy Commissioner, in that he or she cannot hold any of the offices described in paragraph 3, nor have held any such office in the preceding year.

85. Sub-paragraph (3) sets out the terms on which a person can be appointed as acting Commissioner. An acting Commissioner can be relieved from office at that person’s request and

10 †596 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A) may also be removed from office on notice from the Parliamentary corporation. Otherwise, the Parliamentary corporation may determine the terms and conditions by which the acting Commissioner holds office.

86. With the exception of certain provisions relating to terms of office and the validity of actings contained in paragraphs 4, 6 and 7(a), the acting Commissioner is to be treated as the Commissioner.

87. Paragraph 6 makes provision for financial matters including payment of pensions, allowances and gratuities to persons who have ceased to be Commissioners or deputy Commissioners. The Parliamentary corporation has responsibility for arranging such payments. The pensions, allowances or gratuities arranged under this section may be in compensation for loss of office.

88. Paragraph 7 states that no act of the Commissioner or a deputy Commissioner is to be considered invalid on grounds of any defect in his or her nomination, nor by disqualification from appointment as Commissioner or deputy Commissioner.

89. Paragraph 8 empowers the Commissioner to do anything which appears necessary or expedient for the purpose of, or in connection with or conducive to, the exercise of his or her functions. Paragraph 8 also confers upon the Commissioner the specific power to enter into contracts and, with the consent of the Parliamentary corporation, to acquire and dispose of land.

90. The Commissioner can delegate any function to any person he or she authorises to act upon his or her behalf. The Commissioner still retains ultimate responsibility for carrying out his or her functions, whether delegated or not.

91. Paragraph 10(1) states that the Commissioner’s choice of location for his or her office is subject to the approval of the Parliamentary corporation. Paragraph 10(2) requires the Commissioner to have regard to the desirability of sharing premises with another public body, with a view to ensuring economy, efficiency and effectiveness in the use of resources..

92. Paragraph 11 allows the Commissioner to appoint staff on such terms and conditions as the Commissioner determines. The number of staff and their terms and conditions are subject to the approval of the Parliamentary corporation.

93. Sub-paragraph (5) makes provision for payment of pensions, allowances or gratuities to former staff. As read with sub-paragraph (6) this gives authority to the Commissioner to make arrangements, which may include pensions, allowances and gratuities made in compensation for loss of employment. Approval of such arrangements must be obtained from the Parliamentary corporation.

94. Paragraph 12 requires the Parliamentary corporation to designate the Commissioner, a deputy Commissioner or a member of the Commissioner’s staff as the accountable officer and states that he or she is accountable to the Parliament for exercise of those functions. It is the duty of the accountable officer to ensure that the finances of the Commissioner are kept in good

11 †597 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

order and that the resources of the Commissioner are used economically, efficiently and effectively. If the accountable officer is required to act in a manner that he or she considers inconsistent with these responsibilities, the accountable officer must obtain written authority from the Commissioner and send a copy of this to the Auditor General for Scotland.

95. In terms of paragraph 13, the Parliamentary corporation is responsible for payment of any remuneration, allowances and expenses of the Commissioner and any deputy Commissioners. The Parliamentary corporation is also responsible for any sums payable to a person who is appointed as acting Commissioner or who has ceased to hold that office.

96. Paragraph 13 also requires the Commissioner to prepare budget proposals before the start of each financial year and send these proposals to the Parliamentary corporation for approval. The Commissioner may revise these proposals during the year in question and send the revised proposals to the Parliamentary corporation for approval The Parliamentary corporation is not required to pay any expenses incurred by the Commissioner which exceed or are not covered by these proposals although it has power to do so.

97. Paragraph 14 requires the Commissioner to keep proper accounts and accounting records, prepare annual accounts for each financial year and send copies of the annual accounts to the Auditor General for Scotland. The Commissioner must comply with any directions given by the Scottish Ministers in relation to these requirements.

98. The Commissioner must make a copy of the audited accounts available, free of charge, to anyone who requests them.

99. By virtue of paragraphs 15 and 16, the Commissioner is to be subject to the jurisdiction of the Scottish Public Services Ombudsman and the Scottish Information Commissioner.

Schedule 2: Inquiries: supplementary provision as to evidence

100. Paragraph 1 expands upon the ability of the Commissioner to require a person to give evidence. Where oral evidence is required, the Commissioner must give notice specifying the time and place the person should attend. In cases where persons are requested to provide documents or other information, the Commissioner must specify the documents (or type of documents or other information) requested and the date by which they should be produced. In all cases, the Commissioner is required to inform the person in question of the matters to which the request relates.

101. Any person required to give any form of evidence to the Commissioner may apply to the sheriff for cancellation of any requirement imposed by the notice. The sheriff may allow this only if he or she is satisfied that the requirement is unnecessary – i.e. it is unconnected to the matter being investigated, undesirable for reasons of national security or considered by the sheriff to be otherwise unreasonable.

102. Paragraph 3 empowers the Commissioner to administer an oath to any person giving evidence and to require any such person to take an oath.

12 †598 This document relates to the Scottish Commissioner for Human Rights Bill as amended at Stage 2 (SP Bill 48A)

103. The fourth paragraph allows the Commissioner, following the service of a notice under paragraph 1, to refer uncooperative or obstructive persons to the Court of Session. The Commissioner could take this action where a person refuses or fails to comply with any requirement specified in the notice without reasonable excuse including failing to attend at a hearing, where a person refuses to take an oath when so required or to answer questions relevant to the matter at hand, or where a person deliberately destroys, conceals, alters or withholds documents.

104. On hearing any evidence or representations on a report of obstruction, the Court of Session may make such an order for enforcement as it deems necessary or deal with the matter as if it were a contempt of the court.

105. In accordance with paragraph 5, the Commissioner can pay allowances and expenses to any individual giving information of any kind in response to a notice under paragraph 1, subject to the approval of the Parliamentary corporation.

Schedule 3: Places of detention: powers of entry, inspection and interview

106. Schedule 3 expands upon the powers of entry, inspection and review granted to the Commissioner in section 8 and sets out procedures for the exercise of these powers.

107. The Commissioner may delegate these powers to another person, but paragraphs 2 and 2A provide that, before their exercise, anyone who is entitled to exercise the powers must produce written evidence of that entitlement, if required to do so,

108. Paragraph 4 allows the Commissioner to report any person intentionally obstructing the Commissioner or authorised person from exercising this power to the Court of Session. After hearing any evidence or representations on the matter, the Court of Session may make such an order for enforcement as it sees fit or may deal with the matter as a contempt of court.

13 †599  = aÉéìíó=jáåáëíÉê=Ñçê=bÇìÅ~íáçå=C=vçìåÖ=mÉçéäÉ= sáÅíçêá~=nì~ó= = Robert Brown=jpm= bÇáåÄìêÖÜ=beS=Snn= = = Pauline McNeill MSP: qÉäÉéÜçåÉW=MUQR=TTQ=NTQN= Convener of the Justice 1 Committee ëÅçííáëÜKãáåáëíÉêë]ëÅçíä~åÇKÖëáKÖçîKìâ c/o Justice 1 Committee Clerks ÜííéWLLïïïKëÅçíä~åÇKÖçîKìâ Room T3.60 = The Scottish Parliament = Edinburgh = lÅíçÄÉê=OMMS== EH99 1SP

______

Dear Pauline

Scottish Commissioner for Human Rights Bill – estimated costs

During stage 2 of the SCHR Bill on 20 September I said that the Executive would consider lodging a revised financial memorandum to take into account the changes proposed to be made to the Bill by the Executive’s amendments. You will recall that this arose in connection with the amendments to change the “Commissioner” to a “Commission”. However, as you know those amendments were rejected by the Committee.

Those amendments that were passed at stage 2 do not have any material impact on the estimated costs of the SCHR. My understanding, which follows discussions our officials have had with the parliamentary clerks, is that it would therefore not be appropriate for the Executive to lodge a revised financial memorandum and so we have not done so. I nonetheless think it right, given the understandable attention that cost issues have generated, to provide an update of the Executive’s thinking on likely SCHR costs. This letter therefore provides such an update, including a summary of the estimated implications of the amendments that the Executive has lodged for consideration at Stage 3.

I would stress that, as with the Financial Memorandum, the figures given here are, and can be, only estimates. The actual costs will depend on decisions to be taken by the SCHR itself about issues like its work programme and office location, subject of course to the arrangements set out in the Bill such as the requirement for the SCHR to submit its proposed budgets to the SPCB for approval. Nevertheless this letter represents our up to date thinking on cost issues, taking account of points made by the Committee and others during consideration of the Bill and also discussions at official level with the SPCB. I therefore hope that you and your colleagues find it useful.

Numbered references in the headings below are to the paragraphs in the Financial Memorandum that accompanied the Bill at introduction. Summary tables of the assumed costs of the different models described below are attached as an annex to this letter.

†600 Salaries for office-holders (paragraphs 106-109)

A Commissioner with up to two part-time deputies

The SCHR Bill as it currently stands provides for a Commissioner and up to two deputies. The Executive has of course now lodged fresh amendments to create a Commission instead of a Commissioner, so discussion of this option may seem redundant. But I would not wish to prejudge the outcome of the Parliament’s consideration of those amendments, and in any case there are considerations that are similar under both options. So a discussion of the position under the Bill as it now stands following Stage 2 would seem a sensible place to start.

I would stress however that both the models detailed below save money on office holder salaries which can be used by the Scottish Commissioner for Human Rights in exercising its functions. The original Financial Memorandum assumed that all three posts would be full-time, although the Bill does not specify this and the terms of the office-holders’ appointment would be for Parliament to determine. The Financial Memorandum assumed that the Commissioner would be paid a salary of £70,000 to £75,000 a year and the deputy Commissioners between £45,000 and £55,000. Including 30% for pensions and social security costs, the mid-point of the range for the total salaries would be £224,000. These costs were based on the salaries paid to existing statutory office-holders at that time that the Bill was introduced.

Concerns were expressed during Stage 1 about whether the proposed salary for the Commissioner would attract a person of sufficient calibre, which led to suggestions that a salary equivalent to that of a senior judge might be preferable to that we proposed in the Financial Memorandum. However, the SCHR would not be an enforcement or quasi-judicial body: its functions and powers would be more similar to those of existing commissioners such as the Scottish Information Commissioner and the Scottish Commissioner for Children and Young People than to those of a court. I therefore still believe that it is reasonable to assume that the Commissioner would be paid a salary equivalent to those of existing commissioners, rather than to those of members of the judiciary. We have however increased the salary assumption slightly, to £80,000, partly to reflect the slight increases in commissioners’ salaries since the financial memorandum was lodged in 2005 and partly to reflect the committee’s concern that a salary of as little as £70,000 might be too low. Including 30% for pension and social security costs this would amount to £104,000.

We have assumed a similar increase in the salaries of deputy Commissioners to £60,000 a year. However, throughout Stages 1 and 2 both the Justice 1 and Finance Committees questioned whether the deputy Commissioners needed to be full-time appointments. There seemed to be a strong preference that they should instead be part-time appointments. For the purposes of this revised estimate we have therefore assumed that these posts would be no more than half-time appointments. Each would therefore be paid £30,000, which, including 30% for social security and pension costs, would amount to £78,000 a year.

The total cost of salaries for a full-time Commissioner and two half-time deputies would therefore be £182,000, which despite the increases in individual salaries described above is £42,000 less than the total assumed in the original Financial Memorandum.

A Commission - 1 full-time chair and 4 other members at 30 days each

The amendments lodged at Stage 2 by the Executive to provide for a “Commission” rather than a “Commissioner” would have allowed for up to five office-holders; one chairing member and up to four other members. The Executive has lodged amendments to the same effect for Stage 3.

†601 If those amendments are passed, the Bill would therefore provide for appointment of one member to chair the Commission and up to four other members. Whether those appointments should be full- or part-time would be left to the discretion of Parliament. However, I agree with the suggestions made at both Stage 1 and Stage 2 that the preference would probably be for one full-time member to chair the Commission with the other members being appointed on a part-time basis to act as a board giving the SCHR strategic direction. If Parliament were to make appointments on this basis they would be following the example of the Commission for Equality and Human Rights and the Northern Ireland Human Rights Commission, where the Chief Commissioner in each case is a full-time appointment and the other members receive allowances on the assumption that they will devote the equivalent of a number of working days to the work of the Commission.

In this model we assume that the salary for the member responsible for chairing the Commission would be the same as for the Commissioner in the example above, namely £104,000 including provision for pension and social security costs.

Regarding remuneration for the other members of the Commission, most members of the CEHR will receive £8,000 for a commitment of 20 days, while the Scotland Commissioner (as well as the Wales Commissioner and the Commissioner with particular responsibility for disability issues) will receive £12,000 for 30 days. Members of the NIHRC receive approximately £10,000 for an expected commitment of approximately one day a week, which in a standard working year would amount to approximately 45 days.

If Parliament were to make appointments based in this model, it would be reasonable to assume a commitment of around 30 days a year, which is roughly in the middle of the range of examples above, on the part of four members of the SCHR, each receiving £10,000 a year. This figure is a little less than that of the Scotland Commissioner of the CEHR, but he or she will have a remit that includes the six equality strands as well as reserved human rights issues. The figure is, however, more generous per day that than paid to members of the NIHRC. Including 30% for pension contributions and social security costs, four members of the SCHR each receiving £10,000 would amount to a total cost of £52,000.

The total annual cost for the members of the Commission, including the chairing member, would therefore be around £156,000. Despite the slight increase in the assumed salary of the chairing member of the Commission, this would be £68,000 less than the assumption made in the Financial Memorandum for one Commissioner and two full-time deputies.

Recruitment of members (paragraph 110-113)

Members of the Finance Committee expressed some concern that the assumed cost for recruiting the Commissioner and two deputies of the SCHR in the original financial memorandum was too low. To reflect this, and the possibility that it is now proposed that up to five office holders could be appointed, the figure has been increased to £30,000 in the first year and £5,000 in subsequent years. However, this assumes that a full complement of five members would be appointed: in practice the parliamentary authorities might decide to appoint fewer which would reduce costs.

Staff salaries etc. (paragraphs 114-119)

In the Financial Memorandum we adopted an approach whereby we assumed that there would be around 10 staff posts, with remuneration being based on the Executive’s pay and grading structure. However, on further consideration we think that a more realistic approach might be to base our

†602 estimates on the average salary per member of staff for existing commissioners and ombudsmen, which works out at approximately £28,000. We therefore think it reasonable to assume an average salary of £28,000 for members of staff of the SCHR. Thus for 10 members of staff, including 30% for pension contributions and social security costs, the total cost would be £364,000 a year. This is marginally greater than the £350,000 assumption in the Financial Memorandum. We understand that in practice SPCB terms and conditions would probably be applied, but we are not aware that this would make any significant difference to our estimates.

Rental costs (paragraph 120)

Members of both the Finance and Justice 1 Committees stressed that value for money should be a key consideration when deciding the location of the SCHR and that this might include the possibility of co-location with another organisation. The Executive has always shared that view, which reflects the approach we takes in establishing our own public bodies.

The Bill already includes an express stipulation that the SCHR’s choice of a location for its office is subject to SPCB approval. There is a general consensus that co-location of the SCHR with the Scottish headquarters of the CEHR could deliver significant operational and cost benefits. Although it would not be for the Executive to decide where the SCHR should be located, we agree that this and any other sensible other co-location options should be thoroughly considered. To facilitate this, the Executive has maintained close contact with the UK Government team responsible for establishing the CEHR. There have also been discussions with SPSO officials about the possibility of the Scottish Public Services Ombudsman co-locating with the SCHR or with a combined SCHR-CEHR office.

However, it would not be appropriate for the Executive to produce cost estimates based only on one particular option that may or may not actually come about. In any event, there is as yet no specific proposal for co-location, and so no estimate of what that might cost. Therefore, as stated in the Financial Memorandum, in producing cost estimates the Executive has not made any assumptions about where the SCHR would be located, and in particular whether it would co-locate with any other body. We therefore continue simply to assume an annual rental cost of £75,000, which we believe to be reasonably generous based on the costs of other parliamentary commissioner and ombudsmen (taking into account the differing sizes of these bodies). As before, since this estimate is based on the SCHR having its own free-standing office this may prove to be an over-estimate should the SCHR in fact co-locate with another organisation.

Cost of office equipment etc (paragraphs 121-122)

The original Financial Memorandum assumed general office running costs of £80,000 a year. There seems little value in specifying this in much more detail as the examples of other, similar organisations show that costs for lighting, heating, telephones, postage, stationery and other administrative costs can vary widely from year to year and from organisation to organisation.

However, some administrative costs are reasonably predictable. In particular, the SCHR will be audited by Audit Scotland, who charge a fee for this service in the region of £15,000. Additionally, other organisations regularly incur other professional fees for accountancy and legal services. We have therefore assumed a total cost of £30,000 for these services. Having identified this aspect of the SCHR’s administrative costs as a separate line, we have adjusted the figure for the remaining running costs to £50,000 a year.

†603 These estimates are based on the SCHR procuring and operating its own support services on a stand- alone basis. However, as with office location the Executive recognises the need to consider the scope for the SCHR to share support services with other bodies, and amendments have been lodged at stage 3 requiring the SCHR to have regard to the desirability of sharing services. It is therefore possible that the SCHR would share services with another body or bodies, in which case our estimate of costs may prove to be in excess of need; but that would seem to be the more prudent approach than assuming a sharing of services that may in the event prove not to be deliverable.

Research, inquiries and interventions (paragraph 126)

The Finance Committee questioned the fact that the Financial Memorandum did not include a separate line for the cost of inquiries, especially given that a separate line had been included for the cost of research projects. However, the Executive does not believe that inquiries conducted by the SCHR will be likely to require as significant a level of expenditure as research projects, which are often contracted out. This is because it is envisaged that the majority of inquiries would, in practice, involve activities such as visits to public bodies to gather information or view conditions, written requests for information from public bodies, and interviews.

The most significant costs in conducting inquiries would therefore take the form of staff time, travel expenses, telephone charges, stationery and postage costs, etc., which are already covered under other budget headings in this estimate, so there would be little by way of discrete “inquiry costs. This assumption seems to be borne out by the fact that a significant element of the work of the SPSO and Scottish Information Commissioner is investigating individual cases, yet their published accounts do not include distinct lines for “complaints handling” or “investigations”. I understand that this is for the reason just given, namely that the tasks associated with such activity do not incur significant additional expenditure beyond the normal costs of employing staff and providing administrative support.

Of the comparable organisations looked at by the Executive in compiling the Financial Memorandum, the NIHRC is the only one that sets out separate lines in its accounts for investigation and casework costs. However, the most significant of these lines relates to support for individual cases. The SCHR will not have a similar casework role, so we do not consider the NIHRC’s costs relating to casework to be relevant to estimating the costs of the SCHR’s more general inquiry function. While it is reasonable to assume that the SCHR may incur legal costs in exercising its power to intervene in cases, I do not expect the SCHR to exercise that power on a frequent basis, reserving it for the most significant “test cases”, and so believe that these costs would be significantly less than those incurred by the NIHRC.

Apart from the costs of casework, the NIHRC also lists costs for “investigations” from 2001-02 to 2004-05. These range from £9,141 and £44,358. In its annual reports the NIHRC includes in its description of “investigations” activity such as inquiring into the system for the investigation of deaths; conducting research into prison conditions; and examining the rights of older people, particularly in relation to health care. The intention in the SCHR Bill Financial Memorandum was that costs incurred in the course of this kind of activity would generally fall under headings such as “promotion and awareness-raising” or “research”. However, given the Finance Committee’s desire for a separate cost for inquiries to be identified we have included an annual cost of £30,000 for inquiries and legal costs associated with interventions while maintaining our assumption that research costs may amount to £50,000 a year.

Conclusion

†604 The most significant changes between the figures described above and the original Financial Memorandum are in the salaries for office-holders. Both of the models described above would save money on office-holders’ salaries that might be used by the SCHR in exercising its functions. We have also amended some aspects of the assumed office and functional costs to take into account particular concerns expressed by the Finance and Justice 1 Committees at Stages 1 and 2.

The Executive agrees with the Committee’s view that it would be preferable for the SCHR to co- locate and share services with one or more other bodies if feasible, thereby freeing up resources to support the exercise of the SCHR’s duties and functions. The Executive has had extensive discussions with the SPCB, CEHR implementation team and officials from the SPSO to explore possible options in advance of the SCHR’s establishment. However, it would not be prudent to assume that sharing with another body will necessarily transpire to be the most cost-effective option for the SCHR. Therefore, we have continued to base the cost assumptions on the SCHR operating its own office, although should the SCHR in fact co-locate with another body a proportion of the estimated rental and administration costs may be made available for the SCHR’s promotional, research or inquiry work.

Finally, I would again emphasise that any figures given by the Executive can only be for illustrative purposes. The actual costs will depend on decisions to be taking by the SPCB in setting up the SCHR, and then by the SCHR itself in consultation with the SPCB. The fact that the Financial Memorandum and the revised figures given here present three alternative models, all of which come within the anticipated £1m annual allocation, demonstrate why the Executive believes that an efficient and effective human rights body can be delivered within such a budget.

I am copying this letter to Margaret Curran, Cathy Jamieson, and Des McNulty.

Best Wishes

ROBERT E BROWN

†605 ANNEX

Table of costs included in the financial memorandum

2006-07 Subsequent years Staff costs Recruitment of Members 11,000 0 Members’ salaries 112,000 224,000 Recruitment of staff 100,000 6,000 Staff salaries 175,000 350,000 Training 10,000 10,000 Sub-total 408,000 590,000

Office costs Rent 38,000 75,000 Acquisition and conversion 88,000 0 Equipment 110,000 8,000 Running costs 40,000 80,000 Sub-total 276,000 163,000

Functional costs Travel 9,000 18,000 Promotion and awareness-raising 175,000 175,000 Research 25,000 50,000 Sub-total 209,000 243,000 Total 893,000 996,000

†606 Revised costs –Commissioner and 2 half-time deputies

2006-07 Subsequent years Staff costs Commissioner 26,000 104,000 2 half-time deputies 6,500 78,000 Recruitment of members 30,000 5,000 Recruitment of staff 100,000 10,000 Staff salaries 91,000 364,000 Training 2,500 10,000 Sub-total 256,000 571,000

Office costs Rent 18,750 75,000 Acquisition & conversion 200,000 0 Equipment 110,000 8,000 Admin & office costs 12,500 50,000 Travel & expenses 9,000 18,000 Professional & audit fees 30,000 30,000 Sub-total 380,250 181,000

Functional costs Promotion & awareness-raising 175,000 175,000 Research 25,000 50,000 Investigations & interventions 15,000 20,000 Sub-total 215,000 245,000 Total 851,250 997,000

†607 Revised costs – Commission of 1 chairing member and 4 part-time members

Staff costs Commissioner 26,000 104,000 4 members at 30 days each 19,500 52,000 Recruitment of members 30,000 5,000 Recruitment of staff 100,000 10,000 Staff salaries 91,000 364,000 Training 2,500 10,000 Sub-total 269,000 545,000

Office costs Rent 18,750 75,000 Acquisition & conversion 200,000 0 Equipment 110,000 8,000 Admin & office costs 12,500 50,000 Travel & expenses 9,000 18,000 Professional & audit fees 30,000 30,000 Sub-total 380,250 181,000

Functional costs Promotion & awareness-raising 175,000 175,000 Research 25,000 50,000 Investigations & interventions 15,000 20,000 Sub-total 215,000 245,000 Total 864,250 971,000

†608 Scottish Commissioner for Human Rights Bill

Marshalled List of Amendments selected for Stage 3

The Bill will be considered in the following order—

Section 1 to 19 Schedules 1 to 3 Long Title

Amendments marked * are new (including manuscript amendments) or have been altered.

Section 1

Robert Brown 1 In section 1, page 1, line 5, leave out subsection (1) and insert— <(1A) There is established a body corporate to be known as the Scottish Commission for Human Rights (and referred to in this Act as the “Commission”).>

Robert Brown 2 In section 1, page 1, line 7, leave out subsections (2) to (5)

Margaret Mitchell 3 In section 1, page 1, line 7, leave out from to end of line 8 and insert

Margaret Mitchell 4 In section 1, page 1, line 9, leave out from beginning to in line 10 and insert

Des McNulty 5 In section 1, page 1, line 18, at end insert— <(5A) The Scottish Parliament is not to make the first nomination under each of subsections (2) and (3) until it has approved by resolution a report under subsection (5B). (5B) A report under this subsection is a report prepared by a person appointed by the Parliamentary corporation setting out— (a) the costs expected to arise from the appointment of the Commissioner (including a comparison of those costs with the costs which would have been expected to arise if the functions of the Commissioner had been conferred on an existing Scottish public authority), and

SP Bill 48A-ML 1 Session 2 (2006) †609 (b) recommendations as to arrangements for minimising any overlap between the functions of the Commissioner and the functions of any existing Scottish public authority. (5C) If the Scottish Parliament fails to approve a report under subsection (5B), a further report must be prepared under that subsection. (5D) In subsection (5B), “existing Scottish public authority” means a Scottish public authority which existed on 7 October 2005.>

Robert Brown 6 In section 1, page 1, line 19, leave out and insert

Section 2

Robert Brown 7 In section 2, page 1, line 23, leave out first and insert

Robert Brown 8 In section 2, page 1, line 23, leave out second and insert

Robert Brown 9 In section 2, page 2, line 7, leave out and insert

Robert Brown 10 In section 2, page 2, line 8, leave out and insert

Robert Brown 11 In section 2, page 2, line 9, leave out and insert

Robert Brown 12 In section 2, page 2, line 12, leave out and insert

Section 4

Robert Brown 13 In section 4, page 2, line 14, leave out and insert

Robert Brown 14 In section 4, page 2, line 14, leave out and insert

Robert Brown 15 In section 4, page 2, line 19, leave out and insert

2 †610 Robert Brown 16 In section 4, page 2, line 19, leave out and insert

Robert Brown 17 In section 4, page 2, line 21, leave out and insert

Robert Brown 18 In section 4, page 2, line 22, leave out first and insert

Robert Brown 19 In section 4, page 2, line 22, leave out second and insert

Section 4A

Robert Brown 20 In section 4A, page 2, line 25, leave out and insert

Robert Brown 21 In section 4A, page 2, line 25, leave out and insert

Robert Brown 22 In section 4A, page 2, line 29, leave out and insert

Section 14

Robert Brown 23 In section 14, page 2, line 32, leave out and insert

Robert Brown 24 In section 14, page 2, line 32, leave out and insert

Robert Brown 25 In section 14, page 3, line 1, leave out and insert

Robert Brown 26 In section 14, page 3, line 2, leave out and insert

Pauline McNeill 27 In section 14, page 3, line 2, leave out

3 †611 After section 14

Robert Brown 28 After section 14, insert—

Pauline McNeill 29 After section 14, insert—

Section 4B

Robert Brown 30 In section 4B, page 3, line 6, leave out and insert

Robert Brown 31 In section 4B, page 3, line 8, leave out and insert

Robert Brown 32 In section 4B, page 3, line 8, leave out and insert

Robert Brown 33 In section 4B, page 3, line 11, leave out and insert

Robert Brown 34 In section 4B, page 3, line 13, leave out and insert

Pauline McNeill 35 In section 4B, page 3, line 14, at end insert—

4 †612 <(ba) a statement of any intention that the Commission has to give consent (including the reasons for the intention to give such consent) under section 7(4) of the Equality Act 2006 to the Commission for Equality and Human Rights to take human rights action in relation to a matter for which the Scottish Parliament has legislative competence during that period,>

Robert Brown 36 In section 4B, page 3, line 15, leave out and insert

Robert Brown 37 In section 4B, page 3, line 19, leave out and insert

Robert Brown 38 In section 4B, page 3, line 22, leave out and insert

Robert Brown 39 In section 4B, page 3, line 23, leave out and insert

Robert Brown 40 In section 4B, page 3, line 25, leave out and insert

Section 5

Robert Brown 41 In section 5, page 3, line 34, leave out and insert

Robert Brown 42 In section 5, page 3, line 34, leave out and insert

Robert Brown 43 In section 5, page 4, line 4, leave out and insert

Robert Brown 44 In section 5, page 4, line 17, leave out and insert

Robert Brown 45 In section 5, page 4, line 19, leave out and insert

Robert Brown 46 In section 5, page 4, line 23, leave out and insert

5 †613 Robert Brown 47 In section 5, page 4, line 26, leave out and insert

Robert Brown 48 In section 5, page 4, line 29, leave out and insert

Section 6

Robert Brown 49 In section 6, page 4, line 32, leave out and insert

Robert Brown 50 In section 6, page 4, line 34, leave out and insert

Robert Brown 51 In section 6, page 5, line 1, leave out and insert

Robert Brown 52 In section 6, page 5, line 3, leave out and insert

Robert Brown 53 In section 6, page 5, line 5, leave out and insert

Section 7

Robert Brown 54 In section 7, page 5, line 26, leave out and insert

Robert Brown 55 In section 7, page 5, line 35, leave out and insert

Robert Brown 56 In section 7, page 5, line 37, leave out and insert

Robert Brown 57 In section 7, page 5, line 38, leave out and insert

Robert Brown 58 In section 7, page 6, line 8, leave out and insert

6 †614 Robert Brown 59 In section 7, page 6, line 9, leave out and insert

Section 8

Robert Brown 60 In section 8, page 6, line 14, leave out and insert

Section 9

Robert Brown 61 In section 9, page 6, line 32, leave out and insert

Robert Brown 62 In section 9, page 6, line 35, leave out and insert

Robert Brown 63 In section 9, page 6, line 36, leave out and insert

Robert Brown 64 In section 9, page 6, line 38, leave out and insert

Robert Brown 65 In section 9, page 6, line 40, leave out and insert

Section 10

Robert Brown 66 In section 10, page 7, line 8, leave out and insert

Robert Brown 67 In section 10, page 7, line 9, leave out and insert

Robert Brown 68 In section 10, page 7, line 10, leave out and insert

Robert Brown 69 In section 10, page 7, line 12, leave out and insert

7 †615 Robert Brown 70 In section 10, page 7, line 21, leave out and insert

Robert Brown 71 In section 10, page 7, line 21, leave out and insert

Section 11

Robert Brown 72 In section 11, page 7, line 32, leave out and insert

Robert Brown 73 In section 11, page 8, line 1, leave out and insert

Robert Brown 74 In section 11, page 8, line 2, leave out and insert

Robert Brown 75 In section 11, page 8, line 3, leave out and insert

Robert Brown 76 In section 11, page 8, line 5, leave out and insert

Robert Brown 77 In section 11, page 8, line 6, leave out and insert

Robert Brown 78 In section 11, page 8, line 8, leave out and insert

Robert Brown 79 In section 11, page 8, line 11, leave out and insert

Robert Brown 80 In section 11, page 8, line 12, leave out and insert

Robert Brown 81 In section 11, page 8, line 15, leave out and insert

Robert Brown 82 In section 11, page 8, line 17, leave out and insert

8 †616 Section 12

Robert Brown 83 In section 12, page 8, line 31, leave out and insert

Robert Brown 84 In section 12, page 8, line 32, leave out and insert

Robert Brown 85 In section 12, page 8, line 35, leave out and insert

Robert Brown 86 In section 12, page 8, line 37, leave out and insert

Robert Brown 87 In section 12, page 8, line 38, leave out and insert

Robert Brown 88 In section 12, page 8, line 39, leave out and insert

Section 13

Robert Brown 89 In section 13, page 9, line 2, leave out and insert

Robert Brown 90 In section 13, page 9, line 4, leave out and insert

Robert Brown 91 In section 13, page 9, line 4, leave out and insert

Section 15

Robert Brown 92 In section 15, page 9, line 9, leave out and insert

Robert Brown 93 In section 15, page 9, line 14, leave out and insert

Robert Brown 94 In section 15, page 9, line 16, leave out and insert

9 †617 Section 18

Robert Brown 95 In section 18, page 10, leave out lines 17 and 18 and insert— <“the Commission” means the Scottish Commission for Human Rights (established by section 1(1A)),>

Robert Brown 96 In section 18, page 10, leave out lines 21 and 22

After section 18

Mrs Mary Mulligan 97 After section 18, insert—

Section 19

Robert Brown 98 In section 19, page 10, line 31, leave out and insert

Mrs Mary Mulligan 99 In section 19, page 10, line 33, after insert

Schedule 1

Robert Brown 100 In schedule 1, page 11, line 3, at end insert—

10 †618

5 (b) not more than 4 other members. (2) The member appointed to chair the Commission is to be an individual appointed by Her Majesty on the nomination of the Scottish Parliament. (3) The other members are to be individuals appointed by the Parliamentary corporation.>

Des McNulty 100A As an amendment to amendment 100, line 8, at end insert–– <(4) The Scottish Parliament is not to make the first nomination under sub-paragraph (2) until it has approved by resolution a report under sub-paragraph (5). (5) A report under this paragraph is a report prepared by a person appointed by the Parliamentary corporation setting out— (a) the costs expected to arise from the establishment of the Commission (including a comparison of those costs with the costs which would have been expected to arise if the functions of the Commission had been conferred on an existing Scottish public authority), and (b) recommendations as to arrangements for minimising any overlap between the functions of the Commission and the functions of any existing Scottish public authority. (6) If the Scottish Parliament fails to approve a report under sub-paragraph (5), a further report must be prepared under that sub-paragraph. (7) In sub-paragraph (5), “existing Scottish public authority” means a Scottish public authority which existed on 7 October 2005. (8) The Parliamentary corporation is not to appoint any member under sub-paragraph (3) until a member has been appointed to chair the Commission under sub-paragraph (2).>

Robert Brown 101 In schedule 1, page 11, line 5, leave out from to in line 7 and insert

Robert Brown 102 In schedule 1, page 11, line 9, leave out and insert

Robert Brown 103 In schedule 1, page 11, line 9, leave out and insert

Robert Brown 104 In schedule 1, page 11, line 14, leave out <11(2), (3) and (5)> and insert <11>

11 †619 Pauline McNeill 105 In schedule 1, page 11, line 14, after <(5)> insert <, 13(4A)>

Robert Brown 106 In schedule 1, page 11, line 17, leave out and insert

Robert Brown 107 In schedule 1, page 11, line 22, leave out and insert

Robert Brown 108 In schedule 1, page 11, line 23, at end insert— <( ) The relevant period is— (a) in relation to the appointment of a member to chair the Commission, the year preceding the date of nomination, (b) in relation to the appointment of any other member of the Commission, the year preceding the proposed date of appointment.>

Robert Brown 109 In schedule 1, page 11, line 25, leave out and insert

Robert Brown 110 In schedule 1, page 11, leave out lines 31 to 33 and insert— <( ) The member appointed to chair the Commission may be— (a) relieved of office by Her Majesty at the member’s request, or (b) removed from office by Her Majesty if condition A or B is satisfied. ( ) Any other member of the Commission may be— (a) relieved of office by the Parliamentary corporation at the member’s request, or (b) removed from office by the Parliamentary corporation if condition A or B is satisfied.>

Robert Brown 111 In schedule 1, page 12, line 1, leave out from to in line 3 and insert

Robert Brown 112 In schedule 1, page 12, line 5, leave out and insert

12 †620 Robert Brown 113 In schedule 1, page 12, line 8, leave out and insert

Robert Brown 114 In schedule 1, page 12, line 11, leave out and insert

Robert Brown 115 In schedule 1, page 12, line 15, leave out and insert

Robert Brown 116 In schedule 1, page 12, line 18, leave out paragraph 5

Robert Brown 117 In schedule 1, page 12, line 32, leave out and insert

Robert Brown 118 In schedule 1, page 12, line 34, leave out and insert

Robert Brown 119 In schedule 1, page 13, line 5, leave out paragraph 7 and insert—

Robert Brown 120 In schedule 1, page 13, line 12, leave out and insert

Robert Brown 121 In schedule 1, page 13, line 13, leave out and insert

13 †621 Robert Brown 122 In schedule 1, page 13, line 15, leave out and insert

Robert Brown 123 In schedule 1, page 13, line 19, leave out and insert

Robert Brown 124 In schedule 1, page 13, line 19, leave out and insert

Robert Brown 125 In schedule 1, page 13, line 20, leave out and insert

Robert Brown 126 In schedule 1, page 13, line 21, leave out and insert

Robert Brown 127 In schedule 1, page 13, line 23, leave out and insert

Robert Brown 128 In schedule 1, page 13, line 24, leave out and insert

Margaret Mitchell 129 In schedule 1, page 13, leave out lines 26 and 27 and insert— <( ) The Commissioner’s office is to be located on the same premises as the office of the Scottish Public Services Ombudsman.>

Pauline McNeill 130 In schedule 1, page 13, leave out lines 26 to 27 and insert— <( ) After consulting with the Commission, the Parliamentary corporation must determine the location of the Commission’s office premises.>

Robert Brown 131 In schedule 1, page 13, line 26, leave out first and insert

Robert Brown 132 In schedule 1, page 13, line 26, leave out second and insert

Robert Brown 133 In schedule 1, page 13, leave out lines 28 to 31

14 †622 Robert Brown 134 In schedule 1, page 13, line 33, leave out and insert

Margaret Mitchell 135 In schedule 1, page 13, line 34, at end insert

Robert Brown 136 In schedule 1, page 13, line 35, leave out and insert

Robert Brown 137 In schedule 1, page 14, line 1, leave out and insert

Robert Brown 138 In schedule 1, page 14, line 6, at end insert—

Robert Brown 139 In schedule 1, page 14, line 8, leave out and insert

Robert Brown 140 In schedule 1, page 14, line 12, leave out and insert

Robert Brown 141 In schedule 1, page 14, line 13, leave out and insert

Robert Brown 142 In schedule 1, page 14, line 14, leave out and insert

Robert Brown 143 In schedule 1, page 14, line 22, leave out and insert

15 †623 Robert Brown 144 In schedule 1, page 14, line 27, leave out and insert

Robert Brown 145 In schedule 1, page 14, line 29, leave out and insert

Robert Brown 146 In schedule 1, page 14, line 29, leave out and insert

Robert Brown 147 In schedule 1, page 14, line 31, leave out and insert

Robert Brown 148 In schedule 1, page 14, line 31, leave out from to end of line 35

Robert Brown 149 In schedule 1, page 14, line 36, leave out and insert

Robert Brown 150 In schedule 1, page 14, line 37, leave out and insert

Robert Brown 151 In schedule 1, page 14, line 37, after insert

Robert Brown 152 In schedule 1, page 15, line 1, leave out and insert

Robert Brown 153 In schedule 1, page 15, line 2, leave out and insert

Robert Brown 154 In schedule 1, page 15, line 2, after insert

Robert Brown 155 In schedule 1, page 15, line 3, at end insert— <( ) The proposals or, as the case may be, revised proposals must include a statement that the Commission has complied with the duty in paragraph 11A(2) in preparing the proposals.>

16 †624 Robert Brown 156 In schedule 1, page 15, line 5, leave out and insert

Pauline McNeill 157 In schedule 1, page 15, line 6, at end insert— <(4A) If the Commission incurs expenses which exceed any proposals approved under sub- paragraph (2) or (3) it must, for the remainder of the financial year to which the proposals relate, act in accordance with directions given by the Parliamentary corporation.>

Robert Brown 158 In schedule 1, page 15, line 8, leave out and insert

Robert Brown 159 In schedule 1, page 15, line 9, leave out and insert

Robert Brown 160 In schedule 1, page 15, line 13, leave out and insert

Robert Brown 161 In schedule 1, page 15, line 19, leave out and insert

Robert Brown 162 In schedule 1, page 15, line 25, leave out from to in line 26 and insert

Robert Brown 163 In schedule 1, page 15, line 29, leave out from to in line 31 and insert

Schedule 2

Robert Brown 164 In schedule 2, page 16, line 5, leave out and insert

Robert Brown 165 In schedule 2, page 16, line 30, leave out and insert

17 †625 Robert Brown 166 In schedule 2, page 16, line 31, leave out and insert

Robert Brown 167 In schedule 2, page 17, line 12, leave out and insert

Robert Brown 168 In schedule 2, page 17, line 15, leave out and insert

Robert Brown 169 In schedule 2, page 17, line 22, leave out and insert

Schedule 3

Robert Brown 170 In schedule 3, page 17, line 29, leave out and insert

Robert Brown 171 In schedule 3, page 18, line 2, leave out and insert

Robert Brown 172 In schedule 3, page 18, line 3, leave out and insert

Long Title

Robert Brown 173 In the long title, page 1, line 1, leave out and insert

Robert Brown 174 In the long title, page 1, line 2, leave out and insert

18 †626 Scottish Commissioner for Human Rights Bill

Groupings of Amendments for Stage 3

This document provides procedural information which will assist in preparing for and following proceedings on the above Bill. The information provided is as follows: x the list of groupings (that is, the order in which amendments will be debated). Any procedural points relevant to each group are noted.

Groupings of amendments

Note: The time limits indicated are those set out in the timetabling motion to be considered by the Parliament before the Stage 3 proceedings begin. If that motion is agreed to, debate on the groups above each line must be concluded by the time indicated, although the amendments in those groups may still be moved formally and disposed of later in the proceedings.

Group 1: Appointment of a Commissioner/establishment of a Commission 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 98, 100, 101, 102, 103, 104, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 131, 132, 134, 136, 137, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 152, 153, 156, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174

Notes on amendments in this group Amendment 2 pre-empts amendments 3 and 4 Amendments 131 and 132 in this group are both pre-empted by each of amendments 129 and 130 in Group 6 Amendment 100 in this group is amended by amendment 100A in Group 2

Debate to end no later than 50 minutes after proceedings begin

SP Bill 48A-G Session 2 (2006) †627 Group 2: Parliamentary approval prior to appointment of the Commissioner/member to chair the Commission 5, 100A

Notes on amendments in this group Amendment 100A in this group amends amendment 100 in Group 1

Debate to end no later than 1 hour 20 minutes after proceedings begin

Group 3: Activity of Commissioner: duplication of work by any other person 27

Group 4: Power to assist in claims or legal proceedings 28

Group 5: Consent for human rights action by GB Commission for Equality and Human Rights 29, 35

Debate to end no later than 1 hour 45 minutes after proceedings begin

Group 6: Commission/interim commission: premises, staff, services and other resources 97, 99, 129, 130, 133, 135, 138, 151, 154, 155

Notes on amendments in this group Amendments 129 and 130 are direct alternatives Each of amendments 129 and 130 pre-empts amendments 131 and 132 in Group 1

Group 7: Commission: finance and accountability issues 105, 157

Debate to end no later than 2 hours 20 minutes after proceedings begin

†628 EXTRACT FROM THE MINUTES OF PROCEEDINGS

Vol. 4, No. 30 Session 2

Meeting of the Parliament

Thursday 2 November 2006

Note: (DT) signifies a decision taken at Decision Time.

Scottish Commissioner for Human Rights Bill - Stage 3: The Bill was considered at Stage 3.

The following amendments were agreed to without division: 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 131, 132, 133, 134, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173 and 174.

The following amendments were agreed to (by division)—

1 (For 75, Against 37, Abstentions 0) 2 (For 73, Against 39, Abstentions 0).

The following amendments were disagreed to (by division)—

5 (For 37, Against 73, Abstentions 1) 29 (For 32, Against 73, Abstentions 1) 35 (For 32, Against 72, Abstentions 0) 100A (For 34, Against 70, Abstentions 0) 105 (For 37, Against 71, Abstentions 0) 135 (For 34, Against 71, Abstentions 0) 157 (For 38, Against 69, Abstentions 0).

Amendment 27 was moved and, with the agreement of the Parliament, withdrawn.

The following amendments were not moved: 129 and 130.

The following amendments were pre-empted: 3 and 4.

†629 Scottish Commission for Human Rights Bill: The Deputy Minister for Education and Young People (Robert Brown) moved S2M-4920—That the Parliament agrees that the Scottish Commission for Human Rights Bill be passed.

After debate, the motion was agreed to ((DT) by division: For 74, Against 41, Abstentions 0).

†630 28937 2 NOVEMBER 2006 28938

Business Motion Scottish Commissioner for Human Rights Bill: Stage 3 14:55 The Presiding Officer (Mr George Reid): The 14:57 next item of business is consideration of business The Deputy Presiding Officer (Trish motion S2M-5058, in the name of Margaret Godman): The next item of business is stage 3 Curran, on behalf of the Parliamentary Bureau, proceedings on the Scottish Commissioner for setting out a timetable for stage 3 consideration of Human Rights Bill. For dealing with amendments, the Scottish Commissioner for Human Rights Bill. members should have the usual papers: the bill as Motion moved, amended at stage 2, the marshalled list of amendments and the groupings of amendments. That the Parliament agrees that, during Stage 3 of the Scottish Commissioner for Human Rights Bill, debate on Members know about the division bell, so I shall groups of amendments shall, subject to Rule 9.8.4A, be not read out anything more about that. brought to a conclusion by the time limit indicated, that time limit being calculated from when the Stage begins and Section 1—Scottish Commissioner for Human excluding any periods when other business is under Rights consideration or when the meeting of the Parliament is suspended (other than a suspension following the first The Deputy Presiding Officer: Group 1 is on division in the Stage being called) or otherwise not in the appointment of a commissioner/establishment progress: of a commission. Amendment 1, in the name of Group 1: 50 minutes the minister, is grouped with amendments 1 to 4, 6 Group 2: 1 hour 20 minutes to 26, 30 to 34, 36 to 96, 98, 100 to 104, 106 to 128, 131, 132, 134, 136, 137, 139 to 150, 152, Groups 3 to 5: 1 hour 45 minutes 153, 156 and 158 to 174. I draw members’ Groups 6 and 7: 2 hours 20 minutes.—[Ms attention to the pre-emptions that are printed on Margaret Curran.] the groupings paper. Motion agreed to. The Deputy Minister for Education and Young People (Robert Brown): The Executive amendments in group 1 will implement the commitment that we gave at stage 1 to create a commission instead of a commissioner. The bill as introduced was framed in terms that would create an office of the Scottish commissioner for human rights. That followed the model that the Parliament adopted in previous cases, such as the Scottish Public Services Ombudsman Bill. During stage 1, it became clear that the Justice 1 Committee and others had concerns about the potential difficulties involved in entrusting a single person with the task that was to be given to the proposed commissioner for human rights. Having considered those concerns, and as part of a wider strategy, the Executive agreed to revert to the original concept of a commission. Let me pause for a moment to say, by way of providing some context, that the general architecture and the accountability and administrative framework have been substantially strengthened following the stage 1 discussions and the committee’s suggestions. The commission will now operate within the context of a strategic plan. We have also changed the commission’s accountability to Parliament on budgetary and locational issues, which will be much more closely tied to the powers of the Scottish Parliamentary Corporate Body.

†631 28939 2 NOVEMBER 2006 28940

Amendment 1 will replace the current section There are further minor amendments to the 1(1) with a new subsection that will establish arrangements. A provision in schedule 1, as “a body corporate to be known as the Scottish Commission introduced, prohibited the commissioner and for Human Rights”. deputy commissioners from holding any other office or employment without the consent of the Having considered the issues that the committee parliamentary corporation. That provision was raised at stage 1 and the concerns that have been removed at stage 2, to avoid any implication that raised in wider contexts, such as the recent members of the commission ought to be full time. Procedures Committee and Finance Committee inquiries into commissioners more generally, we Amendment 117 will allow the commission, with propose significant improvements to the the approval of the parliamentary corporation, to architecture of the original proposals. Several of make arrangements for the payment of pensions, the amendments are consequential on the change allowances or gratuities to, or in respect of, any of wording from “Commissioner” to “Commission”. person who has ceased to be a member of the commission. That reflects the status of the Amendment 100 will amend schedule 1 by commission as a body corporate with employees. inserting a new paragraph to provide that the commission will have a chair and up to four other The remaining Executive amendments in the members. Like the existing commissioners, the group will make changes consequential to the chair will be appointed by Her Majesty, on the move from a commissioner to a commission. For nomination of the Parliament, with the other example, they will change the references in members being appointed by the parliamentary various parts of the bill. Although it looks as if corporation. There is a saving in that procedure. there is a large number of amendments in the All the members could be full or part time, but a group, they all relate to the same issue. likely outcome is that the chair will be full time and Amendments 3 and 4, in the name of Margaret the other members will be part time. The change Mitchell, revisit the issue on which John Swinney could, therefore, result in administrative cost touched. What they propose was discussed at savings, compared with our original estimates. length and rejected at stage 2 by the Justice 1 Committee. Essentially, the amendments would 15:00 make the Scottish commission for human rights and the Scottish public services ombudsman one Mr John Swinney (North Tayside) (SNP): In organisation, by requiring the commissioner to be light of the views expressed in the Parliament at the same person as the ombudsman and the stage 1, what consideration did the minister give to deputy commissioners to be appointed only from amalgamating this office with one of the other among those people who are already deputy offices that Parliament has already established ombudsmen. and thereby simplifying some of the architecture of the commissioner and ombudsman sector for I cannot support the proposal and will repeat which Parliament has legislated in the past and for some of the arguments that were made before the which it may legislate again this afternoon? committee at stage 2. At present, the ombudsman is a full-time appointment, and the expectation is Robert Brown: As Mr Swinney is aware, that that the chair of the human rights commission will suggestion was the subject of discussion at stage also be full time. There is a significant 2 and was rejected. We will deal with the issue contradiction between requiring the ombudsman to later. take on the significant extra responsibilities that We are all aware that a number of issues arise are envisaged for the chair of the human rights from both the governance and management commission and expecting her to continue to arrangements and from the architecture and perform her ombudsman duties on a full-time structures of commissions and commissioners. basis. One key point is whether there is a place for a More important, it would be inconsistent with the distinct focus at commissioner level on the issues principle of establishing a new post to stipulate involved. In my view, there is a need for a clear that it could be filled only by the holder of another focus on human rights through the establishment post. The Parliament should be able to reach a of a Scottish human rights commission. view before taking a decision, rather than it being Notwithstanding that, there is considerable scope laid down in advance who must be appointed. for the commission to share common and back- That will allow the substantial difference between room services with other bodies and to consider the ombudsman’s role and that of the commission, the option of co-location. As Mr Swinney is aware, on which I have touched and which the a lot of attention has been given to those matters ombudsman has recognised, to be taken into during consideration of the bill—far more than was account. It will also be more in accordance with the case during the appointment of other the principles that govern public appointments, commissioners. which are aimed at ensuring the accessibility of all †632 28941 2 NOVEMBER 2006 28942 public appointments and encouraging as wide and A human rights analysis undertaken by diverse a range of applicants as possible, so that Professor Alan Miller at the request of Carstairs the best person for the post, based on merit—and, state hospital led to very significant improvements not least in this case, on experience—is in the institution’s practices and policies that better appointed. Similar issues arise in respect of the safeguarded the inmates’ human rights—which I deputy commissioners, to whom amendment 4 trust Bill Aitken accepts are important. It also led to relates. I do not want to explore those issues improved public practice at the hospital and, further, because the same arguments apply. bearing in mind the challenges that might have been made to the previous regime, resulted in More fundamentally, it remains our view that possible cost savings. there is a significant gap that only the creation of a separate human rights body can fill effectively. In I stress the point about location because, given that context, it is worth noting that a report that that both the UK Government and the Executive Amnesty International published recently are establishing new bodies, the SPCB should concluded that there was still a widespread lack of fully investigate the possibility of co-locating both focus on human rights among Scottish public organisations if, as I hope, the bill is passed this authorities and called for more to be done to evening. secure awareness and compliance. If only one The key point is that Parliament must have the report had made those points, that would have discretion to decide who should be appointed as been one thing. However, reports by organisations commissioners or members of the proposed as varied as the better regulation task force, the human rights commission on the basis of their National Audit Office, the British Institute of suitability for those roles. As a result, I hope that Human Rights and the Executive itself reached the Parliament will see fit to reject amendments 3 similar conclusions. and 4, even though I understand the point that lies It is also worth noting that, at stage 1, the behind them. I also hope that, given the Scottish public services ombudsman herself strengthened financial and administrative welcomed the bill and expressed a preference for framework, members will support the new the creation of a freestanding human rights body changes that we are seeking to make to the over any expansion of her remit. In doing so, she commission. noted the substantial difference between her role, I move amendment 1. which is reactive and focused on individual complaints, and the role of the proposed SCHR, Margaret Mitchell (Central Scotland) (Con): which is proactive and aimed at addressing more Amendment 3 seeks to confer the functions that general issues. We do not believe that there is a the bill establishes for a Scottish human rights significant overlap between the two bodies. commissioner on the Scottish public services ombudsman by extending his or her role to include That is not to say, of course, that the human rights promotion and awareness-raising. commission and the ombudsman’s office should The Justice 1 Committee identified that narrow neither work closely together on issues of mutual gap in existing service provision during its stage 1 interest nor explore opportunities for sharing consideration of the bill. support services and other resources. Indeed, we have taken significant practical steps to facilitate The Law Society of Scotland has confirmed that the possibility of sharing resources among the ombudsman satisfies the criterion set out in different bodies by discussing the matter with the clause 7(4) of the Equality Act 2006, which refers ombudsman, her staff, the SPCB and the United to a person Kingdom team with responsibility for establishing “established by Act of the Scottish Parliament” the Great Britain commission for equality and human rights. Indeed, that reflects our general whose principal functions would be the same as approach to public bodies. those of the commission for equality and human rights south of the border. The problem is that no Bill Aitken (Glasgow) (Con): Is the minister one in Scotland has had a human rights promotion able to cite any cases of human rights abuse in and awareness-raising function, although that Scotland for which no legal remedy could be found does not mean to say that the promotion or in the existing Scottish legal framework? protection of human rights has been ignored or Robert Brown: I will highlight one matter that neglected here—indeed, far from it. Pre- might be appropriate in that regard, although I devolution, Scotland had a very good record of should point out that we do not know what cases dealing informally with human rights issues. Post- will arise in future and that, of course, many devolution, with the incorporation of the European people already take such cases through the convention on human rights into Scots law, courts courts. must take account of human rights issues and, under the Parliament’s standing orders, every

†633 28943 2 NOVEMBER 2006 28944

single bill must be examined for ECHR the salaries, pensions, allowances, compatibility. accommodation and so on of the proposed commission or commissioner. In addition, post-devolution, numerous commissioners have been created to deal with Mr Swinney: I support the arguments that matters that range from health to freedom of Margaret Mitchell has put forward. Those information. All the commissioners also have arguments must be carefully explored by responsibility for human rights in the areas that fall Parliament before we establish another stand- under their remits. On top of that, non- alone commission to add to the number of governmental organisations and HM prisons commissioners for which the Parliament has inspectorate for Scotland all have a human rights already legislated. role. I preface my remarks by saying that I have no Robert Brown: Can the member elaborate on doubt that human rights issues must be addressed her statement that those other commissioners and that awareness of human rights must be have a human rights role? By that, I do not mean improved. However, I doubt whether, to make that something incidental but something central and happen, we need to establish a separate and intrinsic to their role. discrete infrastructure in addition to the infrastructure for which Parliament has already Margaret Mitchell: The minister has only to look legislated over the past few years. at the work of the commissioner for children and young people. She is certainly not slow in I intervened on the minister to ask him what promoting human rights or highlighting any aspect consideration had been given to the arguments of her remit in which she thinks human rights are against the proposition that Margaret Mitchell has being adversely affected. put forward. The fact that an amendment is rejected at stage 2 does not render the argument The gap is a narrow one, so the minister’s futile. Rather, we must hear compelling arguments response, which is to create a commission or a why it is necessary not to build on the existing commissioner, is in our view disproportionate. The infrastructure that we have established but to minister’s proposal certainly does not provide a establish a stand-alone commission. With the value-for-money solution, as it will cost £1 million greatest respect to the minister, I did not feel that per annum. That money could and should be used in his response to my intervention he provided a to give voluntary organisations the funds to carry compelling explanation of why the incorporation of on in the role that they perform very well, with their the human rights remit and responsibilities within expertise and experience in promoting and the functions of the Scottish public services protecting human rights and, crucially, in taking up ombudsman could not be done following the individual cases. The bill does not give power to requisite changes that would make that possible. either a commission or a commissioner to take up individual cases. 15:15 On top of that, I believe that by giving the role to the Scottish public services ombudsman, Robert Brown: Does the member recall that the unnecessary duplication and overlap would be issue of whether a Scottish human rights avoided. There would be a one-stop shop, which commission could be amalgamated with other the public could readily access and use to address bodies was included in the consultation on the their concerns about human rights. Such a role proposals? That approach was considered as part would certainly complement the Scottish public of the preparatory work on the bill as well as more services ombudsman’s current role, which is to recently during stage 2 consideration. investigate maladministration. Human rights are a Mr Swinney: I do not deny that, but I have huge aspect of that role. heard no compelling reason why that route should The main advantages would be that not have been followed. complementary role and the fact that there would The remits of existing office-holders could be be a one-stop shop. The public services amended by the Parliament, if the Parliament ombudsman already has, from her investigations deemed that to be the most appropriate way to of maladministration, a good idea of where gaps proceed. As I said, human rights gaps exist and exist and where she would like to promote and need to be addressed. We need to ensure that raise awareness of human rights among local there are appropriate organisations that have the authorities and other public bodies. Crucially, our appropriate responsibilities to address such proposal would save a considerable part of the £1 issues. Changes could be made, if the Parliament million that has been earmarked to pay for a was minded to move in that direction. commission or a commissioner. The money would be much better used to fund voluntary The minister said that a purpose of the exercise organisations rather than pay for advertising or for is to secure greater awareness of human rights

†634 28945 2 NOVEMBER 2006 28946 issues and greater compliance with human rights The Minister for Finance and Public Service legislation. Of course we agree with that objective. Reform (Mr Tom McCabe): Perhaps Mr Swinney However, I question whether we need to spend £1 should take his own advice. Day after day in the million of public money on establishing another chamber, he shouts like an uncontrollable child. infrastructure to make that possible and practical. Mr Swinney: If that was meant to be an In response to Bill Aitken’s question about intervention worthy of Scotland’s finance minister, human rights issues that have been addressed, Scotland’s finance minister should think twice the minister cited the example of the state about his interventions. hospital, at Carstairs. Human rights at Carstairs To return to Mr Harvie’s point, Mr Wallace was needed to be addressed, but the issue was not the democratically elected Minister for Justice and addressed by a commissioner; indeed, it was dealt was entitled to take the decision that he took on with before the proposal to have a human rights slopping out, and the Parliament was entitled to commissioner was made. Why do we need to hold him to account for that. The decision was establish a £1 million infrastructure, given that completely within his powers. If he was still the various processes of public policy allow us to Minister for Justice, no commissioner today could address such issues? If there are gaps, let us direct him on that matter. I would not approve of a allocate responsibilities and statutory duties to commissioner who tried to do so, because the office-holders and give those people the electorate must determine whether we take the appropriate resources to allow them to do the job, necessary action. I reject Patrick Harvie’s rather than expand and confuse the infrastructure argument entirely. of governance in Scotland. I hope that members will reflect on that point. The democratic Parliament has an opportunity to pause and Parliament of Scotland has a duty to ensure that reflect on the issues. We should not clutter up we have a Government infrastructure that is Scotland’s infrastructure but take a sensible step simple, efficient and responsive and, most forward—Margaret Mitchell’s amendments and important, which does not duplicate what is going those of other members would help us in that on in different corners of the public arena. respect. Parliament needs to pause and reflect on the issues before we commit to more public The issue could have been approached much expenditure that could go to other matters. The more effectively, without incurring the cost to the minister’s approach will not assist in the public purse that is envisaged. We are repeatedly governance of Scotland or in addressing the told that the spending situation will get tighter and human rights problems and concerns that our hard choices will have to be made. This morning’s constituents bring to our attention. debate on the budget review was all about the hard choices that we face. However, we do not Pauline McNeill (Glasgow Kelvin) (Lab): As I seem to be making hard choices about how we said when the Parliament debated the bill allocate responsibility with resources, without previously in a substitute chamber, my starting increasing the burden on the public purse. point has always been that I was elected to the Parliament to represent people and to take Patrick Harvie (Glasgow) (Green): Is the seriously the issue of human rights, which I have member aware that the Executive has set aside done. I believe in the European convention on £58 million to cope with the possibility of legal human rights and in many other rights that are not action on slopping out? Slopping out is a human covered in that convention. I have always argued rights issue that could have been successfully that every single elected member in the tackled by a commissioner. Prisoners are not Parliament has a responsibility in relation to popular people and they cannot rely on MSPs to human rights and that that is our primary purpose. make their case. Patrick Harvie and others have argued that, if Mr Swinney: With the greatest respect to Mr we had had a human rights commissioner before Harvie—and to Mr Wallace—the issue could have now, we would not have slopping out in prisons been resolved years ago by Mr Wallace. A today. I put it on the record that I utterly oppose commissioner could not have directed Mr Wallace, slopping out in prisons—it is wrong and we are when he was Minister for Justice, to end slopping well on the way to ending it. However, if I thought out. A minister is an elected member of the for a minute that the human rights commission Parliament and is, quite properly, accountable to would think that its priority and that of the general the Parliament. Mr Wallace was entitled to decide public was to spend public money on taking cases to spend money not on ending slopping out but in to court, I would not support the proposals. another fashion—[Interruption.] If Mr McCabe, who was absent from this morning’s debate, wants to It is important to look carefully at the Executive’s intervene, he should get on his feet. I cannot hear amendments, because they fit together. what he is trying to say. Importantly, the Executive has, I think, changed substantially the direction in which it is going. The

†635 28947 2 NOVEMBER 2006 28948

bill was amended so that the duty of the everything else that goes along with that. If we are commissioner—or the commission, depending on going to have a body or person that exercises the our decision later—will be to think not only about human rights function, which is a promotional the obvious people who are in a position to lobby, function, we have to get into the detail of how the but about those who are in more deprived process will work. communities and who are far more remote from Even if members support amendment 3, which the Parliament and commissions. Members should would give that function to the ombudsman, they not forget that that duty is in the bill. still have to decide the detail of how the function The question that we will determine this will be exercised. One way or another, some afternoon is whether any body should exercise a decisions have to be taken. With those conditions, human rights function. Although the Justice 1 I support the Executive’s amendments to section Committee did not endorse the bill’s general 1. principles and had divergent views on how the Patrick Harvie: I very much hope that we will human rights function should be exercised, our create a full commission for human rights. The view was that someone should have that statutory opposition to that approach echoes the general function. The proposals have changed from being but, I hope, minority opposition to the bill. A full for a commission to a commissioner at least four commission might not be the cheapest option— times, and we must make a decision once and for although, in bandying around the figure of £1 all today—that is for sure. million, we should remind ourselves that that is the The Executive’s proposals today are a wee bit annual cost of a small handful of MSPs—but it will different. The structure of the new body is be the best and the strongest option and will give important and we have before us the possibility of the greatest value. a commission that involves part-time people. That Stewart Stevenson (Banff and Buchan) is important because, as a trade unionist, I believe (SNP): Patrick Harvie used the phrase “full that trade unions can make a significant commission”. Is he suggesting that such a contribution to human rights. The proposals would commission would be complete and would require allow people from different backgrounds to be part no powers, or is he using the word “full” in a of the structure and to contribute to the promotion different sense? of human rights. Patrick Harvie: I use the word “full” to Whatever members think on the issue, they differentiate a commission from a commissioner, should acknowledge that a lot of work has been but I very much agree that we should give the done. Margaret Mitchell was right to lodge body the full set of teeth that it will require to amendment 3, because it is legitimate for the promote and protect human rights. I regret that we Parliament to discuss whether the Scottish public are unlikely to do that, but I want the body services ombudsman is the right person to established so that it can grow in its authority exercise the human rights function. I happen to and—I hope—be given those teeth over the years. think that the Executive’s proposal to create a commission is the right way forward, although I Margaret Mitchell’s amendments propose attach some conditions to that. It is important that merging the proposed commission with the public the rest of the debate fits in. I will not support the services ombudsman, but the two organisations Executive amendments until we get further down have fundamentally different ethos. Human rights the road of ensuring that the commission will be are focused on the individual. Maladministration is accountable for its finances. We need to know focused on a public body that is executing some who will determine the location of the body— function. In focusing on maladministration, the whether it is co-located with the public services public services ombudsman may encounter ombudsman or the Great Britain commission. I do human rights issues, but that organisation’s ethos not believe that the decisions on those matters will is different from that of the proposed commission. interfere with the commission’s independence. Further, I disagree with the concept that there is a narrow gap. The human rights issues that the Finally, it is important that, whatever body we set commission will engage in cover the full range of up to exercise the human rights function, that the Scottish Parliament’s functions and devolved body—or person—should tell the Scottish issues. Parliament what it intends to do with its £1 million. Were the Corporate Body to appoint such a body It has also been suggested that the other bodies or person, it is only right that, for the five years that engage from time to time with human rights covering the appointment, the Parliament should issues can fill the gap. Other bodies engaged with be told what the body or person will do with its human rights issues have human rights time. responsibilities, but all public bodies have to comply with the law. It would be bizarre to suggest This is not just about supporting the that we can muddle by without any organisations amendments in the first group; it is about †636 28949 2 NOVEMBER 2006 28950 whose specific focus and remit is the justice but it should be able to make life uncomfortable for system—we should say the same about human politicians in the Government and the Parliament. rights. If we believe— Margaret Mitchell used the phrase “one-stop Mr Stewart Maxwell (West of Scotland) (SNP): shop”. The proposed commission will not be a Will the member take an intervention? one-stop shop if we merge it with the public Patrick Harvie: I am sorry. I have taken a lot of services ombudsman, because the ombudsman interventions. has a role in maladministration in relation to individual cases. Regrettably, the proposed Members from across the political spectrum commission will only have a role in promotion. If believe that the European convention on human we go down the route of Margaret Mitchell’s rights is part of the moral fabric of a modern amendments, there will come a point when an society. If we believe that the treatment of people, individual may be given the response, “No, I’m no matter who they are, must not slip below a sorry, there’s no maladministration here. This is a certain minimum standard, we should be willing to human rights issue. I have to put the phone down establish a strong, independent and focused on you now because I have no responsibility for human rights commission. I hope that members individual cases.” will vote to do that today. Margaret Mitchell: Would the member rather Mr Jim Wallace (Orkney) (LD): A human rights create a commission or a commissioner that commission was not required in order for me, in cannot take up individual cases, in the hope that it September 2002, to announce the biggest-ever may one day have the ability to do so—although investment in refurbishing and building new perhaps it never will—or would he rather use the prisons. That programme has been carried on and money that is available to fund voluntary enhanced by Cathy Jamieson. organisations that do sterling work in promoting and protecting human rights for many vulnerable Life was made difficult for me when I produced people in our society? the plans for reforming the prison estate, not least by Christine Grahame and the Justice 1 Committee. When they were quibbling over 15:30 whether the programme should be private, private- Patrick Harvie: I happily join Margaret Mitchell public or public build, I remember saying to a in commending the voluntary sector for the work colleague, “It is interesting that none of these that it does, but it is wrong to turn up our noses at people ever mentioned the need to end slopping the proposed commission simply because it will be out earlier.” I take some of Mr Swinney’s criticisms given only one of the two important functions. I with a pinch of salt. want the commission to have both functions, but it I remind Mr Swinney that, in a Conservative is getting one of them today and that is better than party debate on the European convention on nothing. human rights in March 2000, Michael Matheson, I agree with Pauline McNeill that many people who was the SNP’s deputy justice spokesman at would not agree that slopping out should be a the time, said: priority for the commission. I am reminded of the “a massive vacuum has been left in relation to human statement—I cannot remember who said it—that rights in Scotland and that vacuum must be filled. The most the problem with human freedom is that we spend effective way of achieving that would be by establishing a our lives defending scoundrels because human rights commission in Scotland.” oppressive laws are used first against scoundrels. Linda Fabiani said: If oppression is to be stopped, it must be stopped at the beginning. It is not appropriate to say that, “If the European convention on human rights is to be properly incorporated into Scots law, Scotland needs its because a group is unpopular, it should not be a own human rights commission in the form described in the priority and its human rights can have second-best Scottish National party amendment.” status. I could quote Ms Cunningham too. Karen Gillon (Clydesdale) (Lab): Is the member seriously suggesting that, if we go down Roseanna Cunningham (Perth) (SNP): I the proposed route and appoint a human rights anticipated that the member would do that. commission, it will somehow be able to direct If Mr Wallace cares to think carefully about that ministers on how to spend public money? That is debate, he will remember that the SNP was talking the only way in which a human rights commission about a human rights commission that would have could have ended slopping out. subsumed the various other human rights bodies Patrick Harvie: I take that point. John Swinney that are now in place. The human rights made the same point earlier. I do not propose that commission that we were discussing is nothing the commission should be able to direct ministers, like the one that is being discussed now.

†637 28951 2 NOVEMBER 2006 28952

Mr Wallace: Roseanna Cunningham said: money, but those organisations believe that what “The SNP wants a commission which would fulfil a wide they are in business to do would be substantially range of functions. It should promote good practice, and enhanced by the bill being passed, not by its being public authorities and private bodies would be covered by watered down or defeated. human rights legislation.”—[Official Report, 2 March 2000; Vol 5, c 328, 333 and 318.] When the consultation was produced early in 2003, the Parliament’s Education, Culture and That is very much in line with what we are Sport Committee had proposed the establishment proposing today. of a children’s commissioner and had published a Patrick Harvie said that the difference between bill to bring that about. At that stage, the question the proposed human rights commission and the whether children should be excluded from the ombudsman is that the ombudsman takes up human rights commission work was considered, individual cases—that is correct—and the only but it was accepted that they should not be function of the commission would be to promote excluded. However, the consultation paper stated awareness. To be fair, however, the commission’s that the human rights commission should functions will go much further than that. It will “establish workable practical arrangements with a provide information, guidance and education but it Commissioner for Children and Young People”, will also have a responsibility to monitor laws, and that that process policies and practices and the power to conduct inquiries. Its role goes a good bit further than “should include considering whether there is scope for co- simply promoting awareness. location and sharing resources.” Patrick Harvie: I am sure that Jim Wallace will The idea of sharing resources was consulted upon agree that the commission’s functions in relation to and indicated as a preferred option at an early individual cases are limited, but I hope that he will stage. At that stage, of course, the UK also reinforce the point that, because of its specific Government had not taken its proposals for a focus on human rights, it is more important for the human rights commission as far as it has done commission to work closely with the UK now. If there were to be some co-location, it would commission than with the Scottish public services make a lot of sense to work alongside and ombudsman. collocate with the new UK body. Mr Wallace: I entirely agree, and I think that It is a misunderstanding or a misreading of the Patrick Harvie’s comment answers one of the situation on Bill Aitken’s part to say that it is only points that Pauline McNeill made about whether about specific pieces of litigation. I see the matter the human rights commission could take up an as going far wider than litigation, to encompass individual case. As I understand the bill, it could awareness and promotion of the culture. That is not do that and I endorse the point that it must one of the most important things about what is range much more widely than the Scottish public proposed, so it goes further than individual cases. services ombudsman does. That is why I think that It is also wrong to bask in the idea that everything Margaret Mitchell’s point is misguided, particularly in the garden is rosy, as Margaret Mitchell seemed if the Scottish public services ombudsman says to suggest. Many members will have seen the that she does not want those responsibilities. It is report on Scottish public authorities that was a full-time job, and to add it to her existing published in September this year by Amnesty functions would overload the ombudsman, who International in Scotland. It stated: would probably end up doing neither job as well as “Amnesty International agrees with the Justice 1 it could be done. Committee that a Scottish Commissioner for Human Rights must ‘… successfully deliver a core promotional and Margaret Mitchell said that the money could be awareness raising role which will embed an awareness of given to some of the groups that promote human human rights in the provision of services by all public rights. Most of the groups that promote human authorities in Scotland.’ rights whose representatives I have met are 100 However this survey has demonstrated that over half the per cent behind the proposals and want the public authorities surveyed do not understand what commission. To pray them in aid—or to pray compliance with the Human Rights Act means.” financial support to them in aid—of opposing the There is a gap to be filled. Awareness needs to proposal is therefore somewhat disingenuous. be raised and education is required, so the idea of Margaret Mitchell: Is it Mr Wallace’s contention, a commission—the original consultations were on therefore, that the various voluntary organisations a commission, rather than a commissioner—is to to which I referred would not welcome a be welcomed. The Information Commissioner for substantial share of £1 million to continue their the UK has highlighted the problems associated effective work? with closed-circuit television, and yesterday the person who pioneered DNA sampling for the Mr Wallace: I have never yet come across a police raised issues about that. There are voluntary organisation that would not accept numerous human rights issues to consider and we †638 28953 2 NOVEMBER 2006 28954 would benefit from having a commission. The be done focus on Scottish public authorities in commission should, as a matter of fundamental general, Scottish public authorities in particular, importance, deliver good value for money, and its and any particular kind of Scottish public service independence will be vital. The minister’s authority—precisely the area of activity of the amendments will go a long way towards delivering public services ombudsman. There is clearly a what surveys show many people in this country parallel set of responsibilities in the public services want in order to safeguard and promote our ombudsman that justify serious consideration of human rights. the amendments that were lodged by Margaret Mitchell. Stewart Stevenson: I congratulate the Deputy Minister for Education and Young People on The question has been asked whether a minister producing what is probably the most heavily can be directed by the commissioner. Of course, populated group at stage 3, with about 150 they cannot. amendments in it. Would that such cerebral The real problem with the bill is that it focuses fecundity had been an attribute of the Minister for on corporate bodies. It leaves my constituents— Justice in his intervention on my colleague, Mr and those of every member in the chamber— Swinney. Of course, it was not. continuing to be puzzled about why they cannot go Bill Aitken: Finance minister. to someone’s door to seek redress or answer in Stewart Stevenson: I stand corrected—it was relation to their rights. The bill does not create the Minister for Finance and Public Service such a person. I suspect that if it did, there would Reform. He has the effect of puzzling us whenever be support across the chamber to a much greater he rises to his feet, and I am not immune. extent than there will be at 6 o’clock tonight. The focus on the corporate is unhelpful; the neglect of I am reminded of the wonderful BBC series, the individual is not useful. “First Minister”— The bill will certainly do no harm, but it shows Members: “Yes, Minister”. little sign that it will do any realistic good that Stewart Stevenson: Yes, “Yes, Minister” and justifies any price tag—whatever it might be—that then “Yes, Prime Minister”. The first episode had we put on it. Jim Hacker meeting his civil servants and asking about a freedom of information bill, only to find that 15:45 the civil servants had prepared for it. Later in the programme, we hear discussion between civil Robert Brown: Some peculiar and contradictory servants and the view is expressed that the bill is arguments have been made across the chamber. dangerous. However, Sir Humphrey is able to Stewart Stevenson makes a number of good and assure his boss at the Cabinet Office that they interesting speeches, but I am not sure that that always get the difficult things out in the title of a bill was one of them, particularly with his rather so that they do not have to talk about them in the bizarre allusion to the powers of the Parliament. detail. In many ways, the bill does that too: it says Let us be clear about what the human rights that it is a Scottish Commissioner for Human commission will do. Bill Aitken set us off on a Rights Bill, but it actually delivers something wrong track by talking about individual remedies. considerably less. The bill does not propose a commission that will Some interesting and strange arguments have provide individual remedies, as anyone who took been deployed today. In rebutting the proposition the trouble to read the bill would agree. The bill is that was put forward from the Conservative specifically about improving the promotional benches, the Deputy Minister for Education and arrangements for human rights in Scotland; it also Young People said that it would not be appropriate deals with the other aspects that Jim Wallace to extend the powers of the public services listed in his excellent speech. ombudsman, although this morning we heard The bill is important because there is a gap that Jeremy Purvis articulating precisely the argument needs to be filled if we are to get better standards that it was appropriate to extend the powers of the of human rights. However, the commission will not Parliament. A bit of consistency would be solve all the world’s problems, as some members appropriate. have suggested. We need to look more closely at the detail of Exaggerated statements have been made, what the bill says. What can the commission notably by Patrick Harvie, on slopping out, which actually do? It can continues to be a matter of great political “(a) consult, (b) act jointly with, (c) co-operate with, or (d) controversy. John Swinney was right to say that assist”. no member would expect any commissioner to That is fine, and when we put it in parallel with the give directions to ministers about how to deal with public services ombudsman, the inquiries that can such matters. It is not the intention—nor is it

†639 28955 2 NOVEMBER 2006 28956

likely—that the commission would have a decisive The Executive’s amendments are important role to play in bringing such issues to public structurally. The central issue is having a attention or in pursuing them. commission rather than a commissioner. That will provide the strategy for making progress on Patrick Harvie: Will the minister take an human rights issues. I hope that the Parliament intervention? will support our proposal. Robert Brown: I have only four minutes, so I cannot take interventions. The Deputy Presiding Officer: The question is, that amendment 1 be agreed to. Are we agreed? As Patrick Harvie rightly said, there is a range of issues across the gamut of the Parliament’s Members: No. activities on which the commission will be able to The Deputy Presiding Officer: There will be a adopt a helpful approach to improving standards. division. There will be a five-minute suspension The bill focuses on the corporate level. As the while the division bell is sounded. various reports that have been done—including that by the Justice 1 Committee—identify, that is where the gap lies. The issue of human rights is 15:48 complex; expertise is required to deal with it. We Meeting suspended. cannot always follow it through in all its manifestations without professional input. The new commission will be able to provide such advice 15:53 and assistance. On resuming— John Swinney talked about the need to pause The Deputy Presiding Officer: We will proceed for consideration. No bill in the Parliament’s history with the division. has had more pause for consideration than the Scottish Commissioner for Human Rights Bill, FOR which began its parliamentary progress in 2000. It Alexander, Ms Wendy (Paisley North) (Lab) has been the subject of two consultations, both of Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) Baillie, Jackie (Dumbarton) (Lab) which supported the general principles of the Baird, Shiona (North East Scotland) (Green) direction of travel and explained clearly what the Baker, Richard (North East Scotland) (Lab) proposal would mean. It is interesting how many Ballance, Chris (South of Scotland) (Green) members have suddenly discovered, at a late Ballard, Mark (Lothians) (Green) stage in the Parliament’s consideration of the bill, Barrie, Scott (Dunfermline West) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) what the various difficulties might be. Brankin, Rhona (Midlothian) (Lab) Roseanna Cunningham has engaged in some Brown, Robert (Glasgow) (LD) imaginative rewriting of the SNP’s position. Butler, Bill (Glasgow Anniesland) (Lab) Byrne, Ms Rosemary (South of Scotland) (Sol) Mr Swinney: Will the minister give way? Canavan, Dennis (Falkirk West) (Ind) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Robert Brown: No, I cannot. Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Ms Margaret (Glasgow Baillieston) (Lab) The Conservatives are putting forward the Deacon, Susan (Edinburgh East and Musselburgh) (Lab) proposition that there is no place for a commission Eadie, Helen (Dunfermline East) (Lab) for human rights, but in a parliamentary debate Ferguson, Patricia (Glasgow Maryhill) (Lab) David McLetchie said: Finnie, Ross (West of Scotland) (LD) Fox, Colin (Lothians) (SSP) “I would welcome the establishment of a human rights Gillon, Karen (Clydesdale) (Lab) commission or similar body to act as a point of reference or Glen, Marlyn (North East Scotland) (Lab) guidance on a consultancy basis. That is the most effective Gordon, Mr Charlie (Glasgow Cathcart) (Lab) way of providing advice to public authorities.” Gorrie, Donald (Central Scotland) (LD) Harper, Robin (Lothians) (Green) Margaret Mitchell: That is misinformation. Harvie, Patrick (Glasgow) (Green) Robert Brown: It is not misinformation; it is a Henry, Hugh (Paisley South) (Lab) Home Robertson, John (East Lothian) (Lab) direct quotation from a parliamentary debate. Hughes, Janis (Glasgow Rutherglen) (Lab) Lord James Douglas-Hamilton made similar Jackson, Dr Sylvia (Stirling) (Lab) Jackson, Gordon (Glasgow Govan) (Lab) comments. He said: Jamieson, Cathy (Carrick, Cumnock and Doon Valley) “Public authorities in Scotland need a body to which they (Lab) can refer for expert guidance on action to iron out any Kerr, Mr Andy (East Kilbride) (Lab) difficulties that the incorporation of the European Lamont, Johann (Glasgow Pollok) (Lab) convention on human rights may impose … it is not Livingstone, Marilyn (Kirkcaldy) (Lab) inconceivable that public authorities will also have them. Lyon, George (Argyll and Bute) (LD) That is why we need a Scottish human rights Macdonald, Lewis (Aberdeen Central) (Lab) commission”.—[Official Report, 2 March 2000; Vol 5, c 307, Macintosh, Mr Kenneth (Eastwood) (Lab) 350.] Maclean, Kate (Dundee West) (Lab)

†640 28957 2 NOVEMBER 2006 28958

Macmillan, Maureen (Highlands and Islands) (Lab) Watt, Ms Maureen (North East Scotland) (SNP) Martin, Paul (Glasgow Springburn) (Lab) Welsh, Mr Andrew (Angus) (SNP) May, Christine (Central Fife) (Lab) White, Ms Sandra (Glasgow) (SNP) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Mr Tom (Hamilton South) (Lab) The Deputy Presiding Officer: The result of McConnell, Mr Jack (Motherwell and Wishaw) (Lab) the division is: For 75, Against 37, Abstentions 0. McMahon, Michael (Hamilton North and Bellshill) (Lab) McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) Amendment 1 agreed to. McNeill, Pauline (Glasgow Kelvin) (Lab) Amendment 2 moved—[Robert Brown]. McNulty, Des (Clydebank and Milngavie) (Lab) Morrison, Mr Alasdair (Western Isles) (Lab) The Deputy Presiding Officer: The question is, Muldoon, Bristow (Livingston) (Lab) that amendment 2 be agreed to. Are we agreed? Mulligan, Mrs Mary (Linlithgow) (Lab) Munro, John Farquhar (Ross, Skye and Inverness West) Members: No. (LD) Murray, Dr Elaine (Dumfries) (Lab) The Deputy Presiding Officer: There will be a Oldfather, Irene (Cunninghame South) (Lab) division. Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) FOR Pringle, Mike (Edinburgh South) (LD) Alexander, Ms Wendy (Paisley North) (Lab) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) Radcliffe, Nora (Gordon) (LD) Baillie, Jackie (Dumbarton) (Lab) Robson, Euan (Roxburgh and Berwickshire) (LD) Baird, Shiona (North East Scotland) (Green) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Baker, Richard (North East Scotland) (Lab) Ruskell, Mr Mark (Mid Scotland and Fife) (Green) Ballance, Chris (South of Scotland) (Green) Scott, Eleanor (Highlands and Islands) (Green) Ballard, Mark (Lothians) (Green) Scott, Tavish (Shetland) (LD) Barrie, Scott (Dunfermline West) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Smith, Iain (North East Fife) (LD) Brankin, Rhona (Midlothian) (Lab) Smith, Margaret (Edinburgh West) (LD) Brown, Robert (Glasgow) (LD) Stephen, Nicol (Aberdeen South) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) Byrne, Ms Rosemary (South of Scotland) (Sol) (LD) Canavan, Dennis (Falkirk West) (Ind) Wallace, Mr Jim (Orkney) (LD) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Whitefield, Karen (Airdrie and Shotts) (Lab) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Wilson, Allan (Cunninghame North) (Lab) Curran, Ms Margaret (Glasgow Baillieston) (Lab) Deacon, Susan (Edinburgh East and Musselburgh) (Lab) AGAINST Eadie, Helen (Dunfermline East) (Lab) Adam, Brian (Aberdeen North) (SNP) Ferguson, Patricia (Glasgow Maryhill) (Lab) Aitken, Bill (Glasgow) (Con) Finnie, Ross (West of Scotland) (LD) Brocklebank, Mr Ted (Mid Scotland and Fife) (Con) Gillon, Karen (Clydesdale) (Lab) Brownlee, Derek (South of Scotland) (Con) Glen, Marlyn (North East Scotland) (Lab) Crawford, Bruce (Mid Scotland and Fife) (SNP) Gordon, Mr Charlie (Glasgow Cathcart) (Lab) Cunningham, Roseanna (Perth) (SNP) Gorrie, Donald (Central Scotland) (LD) Davidson, Mr David (North East Scotland) (Con) Harper, Robin (Lothians) (Green) Douglas-Hamilton, Lord James (Lothians) (Con) Harvie, Patrick (Glasgow) (Green) Fabiani, Linda (Central Scotland) (SNP) Henry, Hugh (Paisley South) (Lab) Fergusson, Alex (Galloway and Upper Nithsdale) (Con) Home Robertson, John (East Lothian) (Lab) Fraser, Murdo (Mid Scotland and Fife) (Con) Hughes, Janis (Glasgow Rutherglen) (Lab) Gibson, Rob (Highlands and Islands) (SNP) Jackson, Dr Sylvia (Stirling) (Lab) Grahame, Christine (South of Scotland) (SNP) Jackson, Gordon (Glasgow Govan) (Lab) Hyslop, Fiona (Lothians) (SNP) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) Ingram, Mr Adam (South of Scotland) (SNP) (Lab) Johnstone, Alex (North East Scotland) (Con) Kerr, Mr Andy (East Kilbride) (Lab) Lochhead, Richard (Moray) (SNP) Lamont, Johann (Glasgow Pollok) (Lab) MacAskill, Mr Kenny (Lothians) (SNP) Livingstone, Marilyn (Kirkcaldy) (Lab) Marwick, Tricia (Mid Scotland and Fife) (SNP) Lyon, George (Argyll and Bute) (LD) Mather, Jim (Highlands and Islands) (SNP) Macdonald, Lewis (Aberdeen Central) (Lab) Matheson, Michael (Central Scotland) (SNP) Macintosh, Mr Kenneth (Eastwood) (Lab) Maxwell, Mr Stewart (West of Scotland) (SNP) Maclean, Kate (Dundee West) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Macmillan, Maureen (Highlands and Islands) (Lab) McGrigor, Mr Jamie (Highlands and Islands) (Con) Martin, Paul (Glasgow Springburn) (Lab) Milne, Mrs Nanette (North East Scotland) (Con) May, Christine (Central Fife) (Lab) Mitchell, Margaret (Central Scotland) (Con) McAveety, Mr Frank (Glasgow Shettleston) (Lab) Morgan, Alasdair (South of Scotland) (SNP) McCabe, Mr Tom (Hamilton South) (Lab) Neil, Alex (Central Scotland) (SNP) McConnell, Mr Jack (Motherwell and Wishaw) (Lab) Petrie, Dave (Highlands and Islands) (Con) McMahon, Michael (Hamilton North and Bellshill) (Lab) Robison, Shona (Dundee East) (SNP) McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) Scott, John (Ayr) (Con) McNeill, Pauline (Glasgow Kelvin) (Lab) Stevenson, Stewart (Banff and Buchan) (SNP) McNulty, Des (Clydebank and Milngavie) (Lab) Swinney, Mr John (North Tayside) (SNP) Morrison, Mr Alasdair (Western Isles) (Lab) Tosh, Murray (West of Scotland) (Con) Muldoon, Bristow (Livingston) (Lab)

†641 28959 2 NOVEMBER 2006 28960

Mulligan, Mrs Mary (Linlithgow) (Lab) commission. Amendment 5, in the name of Des Munro, John Farquhar (Ross, Skye and Inverness West) McNulty, is grouped with amendment 100A. (LD) Murray, Dr Elaine (Dumfries) (Lab) Des McNulty (Clydebank and Milngavie) Oldfather, Irene (Cunninghame South) (Lab) (Lab): Earlier this week, during a lecture in the Peacock, Peter (Highlands and Islands) (Lab) University of Glasgow on the lessons of Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) devolution, Jim Wallace said: Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) “If things have changed in 2006, since a partnership Radcliffe, Nora (Gordon) (LD) agreement commitment made in 2003, then it makes no Robson, Euan (Roxburgh and Berwickshire) (LD) sense to press on regardless.” Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Ruskell, Mr Mark (Mid Scotland and Fife) (Green) That comment is particularly relevant to the bill. Scott, Eleanor (Highlands and Islands) (Green) The proposal to establish a combined United Scott, Tavish (Shetland) (LD) Kingdom commission for equality and human Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) rights, with an office in Glasgow, gave us an Smith, Margaret (Edinburgh West) (LD) opportunity to create a one-stop shop to deal with Stephen, Nicol (Aberdeen South) (LD) all human rights matters—a solution that would Wallace, Mr Jim (Orkney) (LD) have been more cost effective and, undoubtedly, Whitefield, Karen (Airdrie and Shotts) (Lab) simpler for the public to understand and access. Wilson, Allan (Cunninghame North) (Lab) In September, the cross-party Finance AGAINST Committee unanimously recommended that there Adam, Brian (Aberdeen North) (SNP) should be a moratorium on the creation of new Aitken, Bill (Glasgow) (Con) Brocklebank, Mr Ted (Mid Scotland and Fife) (Con) commissions. We were prompted by concerns Brownlee, Derek (South of Scotland) (Con) over accountability, overlapping remits and the Crawford, Bruce (Mid Scotland and Fife) (SNP) burgeoning expense of the bodies and felt that, Cunningham, Roseanna (Perth) (SNP) unless it can be demonstrated that there are Davidson, Mr David (North East Scotland) (Con) responsibilities that cannot be picked up by an Douglas-Hamilton, Lord James (Lothians) (Con) existing body, no new commission should be Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) established. In this instance, not only could the Fergusson, Alex (Galloway and Upper Nithsdale) (Con) powers of the existing commission for equality and Fox, Colin (Lothians) (SSP) human rights easily have been extended but there Fraser, Murdo (Mid Scotland and Fife) (Con) was another alternative. As the Scottish public Gibson, Rob (Highlands and Islands) (SNP) services ombudsman accepted in evidence to the Grahame, Christine (South of Scotland) (SNP) Hyslop, Fiona (Lothians) (SNP) Justice 1 Committee at stage 1, it would be Ingram, Mr Adam (South of Scotland) (SNP) possible for her office to discharge the Johnstone, Alex (North East Scotland) (Con) responsibilities that were intended for the Scottish Lochhead, Richard (Moray) (SNP) human rights commissioner. She accepted that MacAskill, Mr Kenny (Lothians) (SNP) she could undertake the advocacy responsibilities Marwick, Tricia (Mid Scotland and Fife) (SNP) in relation to human rights. She also highlighted Mather, Jim (Highlands and Islands) (SNP) Matheson, Michael (Central Scotland) (SNP) concerns about overlaps and duplication should a Maxwell, Mr Stewart (West of Scotland) (SNP) separate body be created—concerns that the McFee, Mr Bruce (West of Scotland) (SNP) Executive has ignored. McGrigor, Mr Jamie (Highlands and Islands) (Con) Milne, Mrs Nanette (North East Scotland) (Con) It is not too late for the Scottish Parliamentary Mitchell, Margaret (Central Scotland) (Con) Corporate Body to be asked to explore options Morgan, Alasdair (South of Scotland) (SNP) that will allow us to simplify the delivery of the Neil, Alex (Central Scotland) (SNP) advocacy of human rights, which is the purpose of Petrie, Dave (Highlands and Islands) (Con) the bill. My amendment will enable us to save Robison, Shona (Dundee East) (SNP) Scott, John (Ayr) (Con) substantial sums of public money that would Stevenson, Stewart (Banff and Buchan) (SNP) otherwise be irresponsibly wasted. Before spelling Swinney, Mr John (North Tayside) (SNP) out how that might be achieved, I would like to Tosh, Murray (West of Scotland) (Con) highlight some process issues that I believe Watt, Ms Maureen (North East Scotland) (SNP) should give every member of the Parliament Welsh, Mr Andrew (Angus) (SNP) White, Ms Sandra (Glasgow) (SNP) cause for concern. The Deputy Presiding Officer: The result of We should point out that ministers have flipped the division is: For 73, Against 39, Abstentions 0. and flopped repeatedly over the issue of whether there should be a commission or a commissioner. Amendment 2 agreed to. We are being faced at stage 3 with 164 Executive The Deputy Presiding Officer: Group 2 is on amendments—not around 150, as Stewart parliamentary approval prior to appointment of the Stevenson said—which were lodged by the commissioner or the member to chair the minister only last Friday. Although they are

†642 28961 2 NOVEMBER 2006 28962 repetitious, their effect at this late stage is to that opposition to the bill would lead to significantly change the nature of the bill. dictatorship. I am sure that others will be as irritated as I am by sanctimonious claims that anyone who questions the proposition that there 16:00 should be a stand-alone body is somehow Mr Swinney: Has Mr McNulty noticed that many opposed to human rights. The reverse is true. It is of the amendments that the Government has our responsibility, as parliamentarians, both to lodged at stage 3 were defeated at stage 2 in the uphold human rights and to spend public money committee? Does that not render redundant some wisely. Even at this late stage, amendment 5 is a of the arguments that were made by the minister lifeline that could allow us to achieve both in the previous debate? objectives. Des McNulty: Mr Swinney is absolutely right. I In conclusion, I return to another point that Mr was going to point out that similar amendments Wallace made in his lecture. He referred to a were defeated at stage 2, when the minister lost conversation with Donald Dewar in which he not only key votes on his own amendments but, I suggested that it would have been a good thing if would argue, all the arguments on my the Executive had lost more votes in the chamber, amendments. Mr Brown repeated his performance as the rejection of legislation that was inadequate today, although I thought that it was marginally would have sent a powerful signal. He did not better than his performance at stage 2. We should recount Donald’s reply, but I hope that members also remind ourselves that that performance was will send the right signal by supporting the preceded by the Justice 1 Committee’s refusal to amendment in my name. endorse the principles of the bill at stage 1. There has been a catalogue of problems, which should I move amendment 5. give us pause for thought. Mr Swinney: I am indebted to Des McNulty for Many members will not have seen the financial the trouble to which he went in reading from the note that was sent out by the minister only on speech that Jim Wallace gave at the University of Tuesday, which shows that less than a quarter of Glasgow. I had not managed to get round to the money that we are being asked to authorise reading it. It puts into context the criticism that Mr today will be spent on functional costs and the Wallace made of the SNP for reflecting that, after work of the commission. The remainder will be six years of devolution and all the legislation required to pay support staff—many of whom establishing numerous commissioners and would probably not have been required if the task ombudsmen, this is the moment for us to say no had been given either to the ombudsman or to the and to pause. Mr Wallace should perhaps be more commission for equality and human rights—and, consistent in what he says from one day to of course, the inflated salaries of the members of another about the lessons for political parties to the commission. It is an ill wind that does not learn. benefit lawyers. Those costs might not be a huge I support unreservedly what Des McNulty has element of the Executive’s budget, but they said in representing the opinions of the Finance represent a heavy price to the people of Scotland Committee today. The committee—I would say for the stubbornness of the minister and his unanimously, but for the exception of Mark political colleagues. Ballard—has become increasingly concerned The Parliament has no revising chamber, which about the spiralling costs of ombudsmen and the makes it all the more important that we exercise congestion and duplication that are entering their due diligence in legislating. Since 2003, there areas of responsibility. This is the moment at have been material changes that mean that the which Parliament can take the option that Des case for a new commission has been invalidated. McNulty has offered us and reflect on the The Executive has had many chances to change duplication and overlap of duties that have been tack. Had the minister acted sensibly, the created. The bill has had a tortuous parliamentary Parliament would have come out of this with some journey because it is not a piece of legislation with credit. However, the wise words of Jim Wallace, to which members are comfortable or in which they which I have referred, have not been heeded by have confidence. his colleagues. They have insisted on pressing We need to think again about the bill. I urge ahead despite the growing recognition of most members to support amendment 5 to ensure that members that the bill is poor legislation. We have we deliver good legislation for the people of arrived at this point by a process that I believe is Scotland. as embarrassing for this Parliament as the Dangerous Dogs Act 1991 was for Westminster. Margaret Mitchell: I support the amendments in the name of Des McNulty, which make sense, and Patrick Harvie managed to compound that I am grateful to him for highlighting the embarrassment last night by appearing to claim

†643 28963 2 NOVEMBER 2006 28964

inconsistencies in Jim Wallace’s comments during will strongly support measures to address those. the debate. Indeed, we are currently working with the Scottish Parliamentary Corporate Body to consider In voting for the creation of a commission, the opportunities for shared services and co-location, Scottish Parliament has ignored the for example. recommendation that was made by the Finance Committee. An alternative and better approach If the amendments in the group were agreed to, would have involved the Scottish public services the Parliament would be required to appoint a ombudsman. The option that we now have simply person to compile a report on the costs of the means that, instead of a vast amount of the money commission and the scope for minimising overlaps that is available going to help people to fight with other bodies’ remits. I think that we have dealt individual cases or to promote human rights with such issues in other amendments. effectively, it will go on salaries, pensions and Mr Swinney: Notwithstanding the minister’s allowances, which is a shame and a disgrace. comments on the Government’s public service Patrick Harvie: I want to respond to Des reform agenda, does she acknowledge that, since McNulty. I categorically did not suggest that not devolution, the Government has presided over an voting for the bill would lead to a dictatorship. Des expansion in the number of public sector bodies, McNulty’s comments were an absurd overreaction commissioners and ombudsmen? The Finance to what I said, which was that some arguments Committee has made the entirely reasonable that have been deployed against the provisions in proposition that there should be a moratorium until the bill were more familiar from countries that are we decide how effective our governance emerging from dictatorship, where Governments arrangements are. If the Government supports have behaved as though no one should hold them that proposition, we could progress on a much to account. more unified basis than I suspect we would otherwise do. Des McNulty suggested that the Great Britain commission should be given the powers in Cathy Jamieson: I hear what Mr Swinney is question, but not even the UK Government saying and, as I said, I recognise the work that the supports that position. The Westminster legislation Finance Committee has done, which we need to includes a specific prohibition on that commission consider. The bodies and positions that we have dealing with devolved issues. created have been created for genuine reasons and with the best interests of the people of Amendment 5 would, in practice, close the door Scotland at heart. Members of the Scottish on the Scottish commission co-locating with the Parliament believed that creating a children’s Great Britain commission by delaying its creation. commissioner and a public services ombudsman, The amendment therefore defeats the arguments for example, represented a way of progressing an that Des McNulty has made relating to cost agenda that would deal with injustices and savings. Let us get on, pass the bill, create the inequalities in society. It is acknowledged that, in commission, save money by preventing future the future, we will have to consider the range of costly court cases and promote a human rights commissioners, ombudsmen and organisations to culture. ensure that we are still getting the best value for The Minister for Justice (Cathy Jamieson): I money and to ensure that public money is being acknowledge the work of the Finance Committee, spent wisely and is getting results. which has been led by Des McNulty. John As a result of concerns that were raised by the Swinney and others have also taken a close Justice 1 Committee, we have made a number of interest in governance and accountability issues. I changes to the bill. The bill now requires the do not want to ignore all the debates that have commission to consult on a strategic plan and then taken place and all the arguments that have been to publish it. The commission must also submit an made because valid points have been made in annual budget proposal for Parliament’s approval. them. That is recognised by ministers, including Its annual accounts will be subject to the scrutiny the Minister for Finance and Public Service of both the Parliament and the Auditor General for Reform, with whom I have already discussed the Scotland. It will be required to ensure that it does matter. not unnecessarily duplicate the work of other It is important to recognise that our public statutory bodies. We have also lodged service reform agenda aims to accelerate the pace amendments that will require the commission to of reform and to secure improvements right across have regard to the desirability of sharing services the public services. Improving accountability is in order to make the best use of resources. important and it is right and proper that we closely Karen Gillon: The minister will be aware of a scrutinise the activities of every body with public concern that I expressed at stage 2. In the past, funds at its disposal. If there are gaps in the Parliament has been held hostage and has accountability and governance arrangements, we had no option but to approve further budgets for

†644 28965 2 NOVEMBER 2006 28966 organisations such as Scottish Opera and Scottish when it is absolutely necessary. The case has not Enterprise. Will the minister assure me that, as a been fully made for Mr Brown’s proposals. result of the amendments that we are passing today, it will be clear that no budget will be able to overrun, leaving the Parliament with a bill for 16:15 which it had not set a budget? The amendments in my name allow us a last- gasp opportunity to ask ourselves whether we Cathy Jamieson: The Scottish Parliamentary have got this right before we drive ahead with the Corporate Body will be responsible for appointing fixed model that the Executive has, politically the commission. If the bill is passed, a clear speaking, continually sought to impose on us. The message will go out from the Parliament that it issue is for the Parliament as a whole to consider. expects the spirit of the bill, as well as the letter of As a responsible Parliament, we cannot have the bill, to be adhered to. There is cross-party processes that lead to this kind of legislation being support for the idea that all public money should introduced in this kind of way, especially when the be spent wisely and only after careful scrutiny. legislation aims to set up an independent Later, we will come to amendments in the name of commission that should have the support and Mary Mulligan that will give the corporate body endorsement of the whole Parliament. A key more ability to scrutinise. element should be that everyone buys into the Karen Gillon makes a valid point. If a budget has creation of such bodies. to be approved in advance by the corporate body, I do not believe that the way in which the bill has it will be incumbent on any organisation that been introduced and the controls that are to be put receives public money not to go outwith its budget. in place are satisfactory. I say that with great I understand what Des McNulty is trying to sadness, because I think that we could have done achieve with amendments 5 and 100A, but I do better and I hope that we will do better in future. not think that they are necessary to ensure full and We will do better by being more fundamental in careful scrutiny. It is unlikely that he will seek to the way in which we look at these issues. withdraw his amendments, but I will still ask him to I will press amendment 5. do so, based on the assurances that we have offered today and the other amendments that the The Deputy Presiding Officer: The question is, Executive has lodged. I have also assured him that amendment 5 be agreed to. about conversations that have already taken place Members: No. with the Minister for Finance and Public Service Reform. The Deputy Presiding Officer: There will be a division. Des McNulty: As recently as Tuesday, new figures were produced that assumed that salaries FOR and office costs connected to the bill would be Adam, Brian (Aberdeen North) (SNP) paid on a part-year basis. However, the functional Aitken, Bill (Glasgow) (Con) expenditure has not been adjusted accordingly. Brocklebank, Mr Ted (Mid Scotland and Fife) (Con) Brownlee, Derek (South of Scotland) (Con) Even at this late stage, with the focus on finance, Crawford, Bruce (Mid Scotland and Fife) (SNP) there is an elementary error—one of a number of Cunningham, Roseanna (Perth) (SNP) errors—in the last-minute calculations of the Davidson, Mr David (North East Scotland) (Con) minister. Douglas-Hamilton, Lord James (Lothians) (Con) Fabiani, Linda (Central Scotland) (SNP) Amendment 5 would require the SPCB to trim Fergusson, Alex (Galloway and Upper Nithsdale) (Con) costs substantially where there are savings to be Fraser, Murdo (Mid Scotland and Fife) (Con) made, rather than pressing on regardless with a Gibson, Rob (Highlands and Islands) (SNP) budget that does not stand up to scrutiny. Even if Grahame, Christine (South of Scotland) (SNP) Hyslop, Fiona (Lothians) (SNP) the amendment is defeated, I hope that the SPCB Ingram, Mr Adam (South of Scotland) (SNP) will still trim the costs, because that is its job and Johnstone, Alex (North East Scotland) (Con) its obligation. Lochhead, Richard (Moray) (SNP) MacAskill, Mr Kenny (Lothians) (SNP) Not enough attention has been paid to crucial Marwick, Tricia (Mid Scotland and Fife) (SNP) issues. Those issues relate not only to the human Mather, Jim (Highlands and Islands) (SNP) rights commissioner but to every other Matheson, Michael (Central Scotland) (SNP) commissioner, because almost identical problems Maxwell, Mr Stewart (West of Scotland) (SNP) have arisen with every other commissioner. The McFee, Mr Bruce (West of Scotland) (SNP) McGrigor, Mr Jamie (Highlands and Islands) (Con) Parliament must grow into its responsibilities. In McNulty, Des (Clydebank and Milngavie) (Lab) elections, we have been given responsibilities by Milne, Mrs Nanette (North East Scotland) (Con) the people of Scotland. We should not give those Mitchell, Margaret (Central Scotland) (Con) responsibilities away lightly but should do so only Morgan, Alasdair (South of Scotland) (SNP) Neil, Alex (Central Scotland) (SNP) Petrie, Dave (Highlands and Islands) (Con) †645 28967 2 NOVEMBER 2006 28968

Robison, Shona (Dundee East) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Scott, John (Ayr) (Con) Ruskell, Mr Mark (Mid Scotland and Fife) (Green) Stevenson, Stewart (Banff and Buchan) (SNP) Scott, Eleanor (Highlands and Islands) (Green) Swinney, Mr John (North Tayside) (SNP) Scott, Tavish (Shetland) (LD) Watt, Ms Maureen (North East Scotland) (SNP) Smith, Elaine (Coatbridge and Chryston) (Lab) Welsh, Mr Andrew (Angus) (SNP) Smith, Iain (North East Fife) (LD) White, Ms Sandra (Glasgow) (SNP) Smith, Margaret (Edinburgh West) (LD) Stephen, Nicol (Aberdeen South) (LD) AGAINST Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) Alexander, Ms Wendy (Paisley North) (Lab) (LD) Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) Wallace, Mr Jim (Orkney) (LD) Baillie, Jackie (Dumbarton) (Lab) Whitefield, Karen (Airdrie and Shotts) (Lab) Baird, Shiona (North East Scotland) (Green) Wilson, Allan (Cunninghame North) (Lab) Baker, Richard (North East Scotland) (Lab) Ballance, Chris (South of Scotland) (Green) ABSTENTIONS Ballard, Mark (Lothians) (Green) Murray, Dr Elaine (Dumfries) (Lab) Barrie, Scott (Dunfermline West) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) The Deputy Presiding Officer: The result of Brankin, Rhona (Midlothian) (Lab) the division is: For 37, Against 73, Abstentions 1. Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Amendment 5 disagreed to. Byrne, Ms Rosemary (South of Scotland) (Sol) Amendment 6 moved—[Robert Brown]—and Canavan, Dennis (Falkirk West) (Ind) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) agreed to. Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Ms Margaret (Glasgow Baillieston) (Lab) Section 2—General duty to promote human Deacon, Susan (Edinburgh East and Musselburgh) (Lab) rights Eadie, Helen (Dunfermline East) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) Amendments 7 to 12 moved—[Robert Brown]— Finnie, Ross (West of Scotland) (LD) and agreed to. Fox, Colin (Lothians) (SSP) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Section 4—Information, guidance, education Godman, Trish (West Renfrewshire) (Lab) etc Gordon, Mr Charlie (Glasgow Cathcart) (Lab) Gorrie, Donald (Central Scotland) (LD) Amendments 13 to 19 moved—[Robert Harper, Robin (Lothians) (Green) Brown]—and agreed to. Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Section 4A— Monitoring of law, policies and Home Robertson, John (East Lothian) (Lab) practices Hughes, Janis (Glasgow Rutherglen) (Lab) Jackson, Dr Sylvia (Stirling) (Lab) Amendments 20 to 22 moved—[Robert Jackson, Gordon (Glasgow Govan) (Lab) Brown]—and agreed to. Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kerr, Mr Andy (East Kilbride) (Lab) Section 14—Power to co-operate etc with Lamont, Johann (Glasgow Pollok) (Lab) others Livingstone, Marilyn (Kirkcaldy) (Lab) Lyon, George (Argyll and Bute) (LD) Amendments 23 to 26 moved—[Robert Macdonald, Lewis (Aberdeen Central) (Lab) Brown]—and agreed to. Macintosh, Mr Kenneth (Eastwood) (Lab) Maclean, Kate (Dundee West) (Lab) The Deputy Presiding Officer: Group 3 is on Macmillan, Maureen (Highlands and Islands) (Lab) the activity of the commissioner and duplication of Martin, Paul (Glasgow Springburn) (Lab) work by any other person. Amendment 27, in the May, Christine (Central Fife) (Lab) name of Pauline McNeill, is the only amendment in McAveety, Mr Frank (Glasgow Shettleston) (Lab) the group. McCabe, Mr Tom (Hamilton South) (Lab) McConnell, Mr Jack (Motherwell and Wishaw) (Lab) Pauline McNeill: Amendment 27 is a probing McMahon, Michael (Hamilton North and Bellshill) (Lab) amendment on the provision that requires the McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) commissioner to McNeill, Pauline (Glasgow Kelvin) (Lab) Muldoon, Bristow (Livingston) (Lab) “seek to ensure, so far as practicable, that any activity Mulligan, Mrs Mary (Linlithgow) (Lab) undertaken by the Commissioner under this Act does not Munro, John Farquhar (Ross, Skye and Inverness West) duplicate unnecessarily any activity undertaken by any (LD) other person”. Oldfather, Irene (Cunninghame South) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Given that the Executive has asked Parliament Peattie, Cathy (Falkirk East) (Lab) to agree to amendments that will result in the Pringle, Mike (Edinburgh South) (LD) creation of a commission rather than a Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) commissioner, we should now be prepared to drill Radcliffe, Nora (Gordon) (LD) Robson, Euan (Roxburgh and Berwickshire) (LD) down into the detail of that. It is vital that the

†646 28969 2 NOVEMBER 2006 28970 provision in section 14 exists, because there is no I say it, duplication of opinion. We must be point in creating a commission for human rights if absolutely clear about what standards have been it will duplicate the work of anyone else. I applied and what we envisage by the inclusion of emphasise that duplication should refer not just to the word in the bill. In the spirit of the debate, I am the work of other bodies and commissions but to minded to support Pauline McNeill, because it is the work of the committees of the Parliament. essential that we avoid duplication with functions that are performed by other bodies. I am Amendment 27 seeks to remove the word concerned that the wording of the provision as it “unnecessarily”. I think that the provision is too stands is not sufficiently clear to allow us to take loosely worded, because it would allow the an informed decision. I look forward to getting commission itself to determine whether it is clarification that will assist us in the matter. duplicating the work of someone else. I would prefer to delete the word “unnecessarily”. I hope Margaret Mitchell: I am minded to support the that ministers will endorse the message that the amendment in Pauline McNeill’s name. However, idea of duplication extends to the Parliament’s before committing myself to do so, I would committees. If a parliamentary committee were welcome clarification of the point by the minister conducting an inquiry into an issue of human and an indication of whether the amendment rights, I would be concerned if the commission for would cause any unnecessary bother. human rights took up the issue at the same time. The Deputy Presiding Officer (Murray Tosh): We must set down clear lines of demarcation if we Robert Brown is the minister who will respond to are to go down this road. the points that have been made. Although amendment 27 is a probing Robert Brown: Despite having many other amendment, I look for strong assurances from magical abilities, I have not undergone a sex ministers that the provision means that there change. should be no duplication. The message to any commission or commissioner in the future should I thank Pauline McNeill for raising the important be that they are expected to abide by that principle issue of avoiding duplication, which is at the heart in relation both to other commissions and to the of the original provision in section 14. The Scottish Parliament. Executive is strongly of the view that we do not want to see duplication of function between the I move amendment 27. bodies. Nevertheless, there are areas in which Stewart Stevenson: It is rather unclear whether there will be commonality of interest. In an we should support or reject the amendment. An excellent contribution, in which he rightly referred argument for rejecting it is that creating an to the issue as being at the fulcrum of the debate, absolute inhibition on duplicating work by deleting Stewart Stevenson made the point that the word “unnecessarily” would slow down and arrangements may be put in place for the Scottish make cautious a commission that, if we are to commission to work in partnership with the GB have one, must be outward looking and confident commission, for example. I remind the chamber that it will not be open to legal challenge. I say that that the structure of the strategic plan particularly because the phrase that is used is arrangements is designed to ensure that the “any other enactment” rather than “any other relationship between the Parliament and the enactment of the Scottish Parliament”. Deleting commission is linked to the commission’s work the word “unnecessarily” might prevent the plan. That is an important backdrop to the debate. Scottish commission from looking at issues that There will be situations in which work by one the GB commission for equality and human rights body is done in co-operation with another, or in is considering. There are potential difficulties in which one body contributes to the work of another. relation to that. I will listen to what the minister, as I take Pauline McNeill’s point that parliamentary advised by her civil servants, has to say on the committees, which are democratic bodies, will be matter. Another speaker from the SNP may take a central in that connection. We certainly do not different view. That reflects the difficulties of anticipate that the Scottish human rights considering at this late stage the deletion of one commission will conduct a parallel inquiry without word in a provision that is an important fulcrum of being invited to do so by the committee the bill. At the moment, I am minded to oppose the concerned. amendment. It is essential that we deal with the issue of Mr Swinney: It is evident that SNP members, duplication but, as Stewart Stevenson pointed out, like members from other parties, are not all singing amendment 27 will make things too rigid and from the same hymn sheet today. I would be simply make it difficult for the commission to carry grateful if the minister would clarify what she out its functions against the background of the envisages by the word “unnecessarily”, which is strategic plan and its various agreements with not a terribly precise parliamentary term and is other bodies on areas of activity. For example, subject to enormous misinterpretation—even, dare †647 28971 2 NOVEMBER 2006 28972

removing the word “unnecessarily” would mean commission, suggests that such an approach does that, even if the commission thought that a certain not necessarily promote or raise awareness of activity was necessary to allow it to fulfil its human rights issues efficiently or effectively. Of functions, it would have to ensure that it did not course, existing mechanisms in Scots law allow carry it out. I realise that that point is somewhat on individuals to defend their rights through the courts the fringe, but we in the Executive and many other with, where appropriate, the help of legal aid and people certainly feel that duplication must be assistance. The commissioner should not provide avoided. Indeed, I hope that the message that financial assistance to individuals in one legal comes out of this debate is that, under the area. arrangements that we seek to introduce, we do not There is no particular and explicit provision that expect the work of these bodies to overlap. allows the commission to support individual cases, With that reassurance, I hope that Pauline but there is a risk that some of the more general McNeill will withdraw amendment 27. powers could be interpreted together in a way that would suggest that such a power exists. As a Pauline McNeill: I wanted to probe the issue result, amendment 28 seeks to make it clear that because I felt that the Parliament needed to be the commission has no such power. Instead of clear about what was meant in section 14. The being saddled with meeting the costs of individual provision is helpful because, normally, there cases, it should direct its resources at broader should be no duplication in the commission’s promotional and awareness-raising work. human rights work. In that respect, the strategic plan will help, because it will allow us to see the I accept that, in some cases, the commission’s commission’s forward plan. input might be useful. However, the bill already contains provisions to allow the commission to I simply want to ensure that, in making any make focused interventions in civil cases in which judgment on this provision, a future commission human rights arise. That will be a more efficient can read the Official Report and see clearly that and effective use of the commission’s resources the Parliament’s will on this matter is that it does than would becoming entangled in individual not expect any duplication to occur. I am pleased litigation. As a result, I hope that Parliament will that the minister mentioned the committees of the accept the logic behind amendment 28 and Parliament, because it is an important point. I do support it. not expect a future commission to carry out a I move amendment 28. parallel report on a human rights issue that the Parliament has already decided to explore. As I Marlyn Glen (North East Scotland) (Lab): I have received some clarity on this issue, I seek to accept the clarification in amendment 28 that the withdraw amendment 27. SCHR has no power to provide direct assistance. However, will the minister confirm that the Amendment 27, by agreement, withdrawn. amendment will not prevent the SCHR from publishing general guidance on how human rights After section 14 can be upheld, including information to that effect? The Deputy Presiding Officer: Group 4 is on For example, will it be able to provide to a victim of power to assist on claims or legal proceedings. an alleged human rights breach by a public Amendment 28, in the name of the minister, is the authority information on how to claim only amendment in the group. compensation in court by referring that person to, or sending them, such general guidance? Robert Brown: At stage 2, Robin Harper raised the issue of giving the proposed commission grant-making powers. I said at the time that I 16:30 would look at the matter, because the wording in Patrick Harvie: I echo Marlyn Glen’s remarks. I the bill was somewhat ambiguous. We have look forward to hearing the minister’s response. decided not to follow Robin Harper’s suggestion The commission should not be prevented from for a specific outline of the commission’s grant- publishing hypothetical cases, for example, for the making potential, because we feel that it was education of the general public. never intended that it would make such grants. We believe that, in time, the commission should However, after further examination of the matter, have the power to involve itself in individual cases. we decided to lodge amendment 28, which will However, we accept that that is clearly not the will make it clear that the commissioner should not be of Parliament, so we are willing to accept the involved in individual casework. We reached that commission with its promotional role. decision after the second consultation, and the Nevertheless, we urge all political parties, as time strand has run through our work on the matter. goes on and as the commission establishes itself The cost of supporting individual cases can be in civic society, to look again at the role that it very high and the experience of other jurisdictions, could be given in the future regarding individual not least the Northern Ireland human rights cases. †648 28973 2 NOVEMBER 2006 28974

Robert Brown: In response to Marlyn Glen’s according to which it would exercise the power. It valid point, although we are obviously not seems odd that the GB commission can exercise supporting the use of the powers with individual the power of judicial review on a devolved issue cases, there is a clear signposting role for the upon the consent of the Scottish commissioner commission. Therefore, publication of advice and when it is accountable to Westminster, but not to guidance on where people can get additional this Parliament. I have a problem with that. In any information and distribution of leaflets could come case, the power should be used sparingly, which entirely under the commission’s central function. is, I believe, why it was put there. That is the We anticipate that it would wish to take on that position, as I understand it, of the Department for sort of role. Constitutional Affairs. I recognise Patrick Harvie’s position on the I seek clarity on the matter. There will, of course, matter but, as he acknowledged, it is not a position be costs involved, but it is not clear who would pay with which the Executive agrees. It will no doubt the costs of a court case. I guess that it would be be the subject for debate on another day. the GB commission, if it was exercising the powers—albeit that it would be doing so with the Amendment 28 agreed to. consent of the Scottish commission. However, that The Deputy Presiding Officer: Group 5 is on is not clear. consent for human rights action by the Great If an issue is significant enough to warrant a Britain commission for equality and human rights. court case because there has been a breach of Amendment 29, in the name of Pauline McNeill, is human rights, I see no reason why there should grouped with amendment 35. not be advance planning in that regard. The Pauline McNeill: My proposals cover an Scottish commission could indicate in the strategic important aspect of this afternoon’s debate—they plan that it presents to Parliament its intention to deal with provisions in the UK Equality Act 2006 give consent to the GB commission on an issue to on the commission for equality and human rights. do with human rights. Given that any court action Section 7(4) of that act provides that, with the would be likely to consider issues that fall within consent of the Scottish commissioner, the Great the responsibilities of the Scottish Parliament, I Britain commission may use the powers of judicial simply suggest that we should be told about that. review on devolved issues. My proposal would in no way interfere with the Amendment 29 states how that consent may be independence of either commission. It would exercised. Under the amendment, it cannot just be simply ensure that elected members were aware used for a devolved issue, and it should be that action was being taken in respect of human contained in the strategic plan that must be rights. presented to Parliament. Amendment 35 would In a briefing note on amendment 29, it is require that any intention of the Scottish suggested that the inclusion of information in the commission to grant consent to the GB strategic plan would be a problem, because the commission be flagged up to the Scottish plan will be produced only every four years. Parliament in advance in the strategic plan. The However, the bill makes provision for the strategic Justice 1 Committee asked for clarity on that plan to be amended. If the Scottish commission point—indeed, it asked for clarity from stage 1. I wanted to give consent to the GB commission on feel that this has been a vital constitutional issue an important matter that involved a devolved to deal with, but it has not been addressed since issue, nothing would stop it from amending the the matter was first raised. plan to indicate its intention to act. The Justice 1 Committee also raised the matter I want confirmation that the Scottish Parliament with the Department for Constitutional Affairs. Its would be aware that consent had been given to response was that the provisions were never the GB commission, which is responsible to designed to be a back door by which the Scottish Westminster, and that it is expected that the power commissioner could use the power of judicial be used sparingly. I hope that the minister will review, which will not be granted by the bill. There confirm that there is no intention to provide a back are several reasons for that. First, that would be door to judicial review powers for the Scottish contrary to the legal principles of Scots law, in that commission. I would like to see a memorandum of a victim who sues over or claims a breach of their understanding that sets out roughly how consent human rights must do so themselves. We do not is expected to be exercised. I hope that the SPCB allow third parties to do that. would see that memorandum in advance, so that we could all be clear about how the consent would It is important that we clarify how the consent be used. That is what amendment 29 is about. that can be given by the Scottish commission to the GB commission would be exercised. There is If I get the answers that I seek on the matters nothing in the bill that gives any direction to a that I have identified, I might be prepared to seek Scottish commission as to the reasons or criteria to withdraw amendment 29. †649 28975 2 NOVEMBER 2006 28976

I move amendment 29. early stage how best to address that. As a result of those discussions, the Parliamentary Under- Stewart Stevenson: We support amendments Secretary of State for Women and Equality stated 29 and 35. If amendment 29 is not agreed to, we on the floor of the House of Commons that section will still support amendment 35. 7 of the Equality Act 2006 should be read as The issue illustrates the considerable difficulties requiring the CEHR to seek the consent of the in which we find ourselves as different legislatures Scottish commission before instituting legal try to ensure that their systems work proceedings on a devolved matter. I suppose that harmoniously. The Scottish Parliament’s that is, at that end of the day, probably okay. involvement in the proposals to establish the The issue then turns on the proposed commission for equality and human rights, some memorandum of understanding, which is central. of whose responsibilities will apply north of the The UK Government and the Scottish Executive border, was sufficiently minimal to create the agreed at the outset that the GB commission and difficulties that the Justice 1 Committee the Scottish commissioner or commission should encountered when it visited London during the enter into a memorandum of understanding that early stages of its consideration of the bill. sets out their respective roles, to be supported by Under the Scotland Act 1998, it would have close on-going co-operation. There was common been possible for Westminster simply to have ground on the Scottish commission’s taking the given us the powers that we would need to create clear lead on promoting human rights on devolved an integrated and holistic environment for the policy matters, while the GB commission would act consideration of equality and human rights. Such on reserved matters. One incidental issue with an approach would have offered a useful way Pauline McNeill’s amendment 29 is that it forward and would have avoided the difficulties at proceeds not on that basis, but on a geographical the interface between the bill and the Westminster basis. approach, which was being considered before our The GB commission is therefore not expected to bill was introduced. Amendments 29 and 35 try to take any action on devolved human rights matters, address those difficulties. We support them. except when that might be appropriate in Karen Gillon: I also support amendments 29 connection with its reserved human rights or and 35. I seek from the minister the assurances equality activities. The clear understanding of the that Pauline McNeill seeks, particularly in relation Scottish ministers is that any such action should to judicial review and the transparency of the be incidental to those main activities and should process. I remain to be convinced by the minister not impact materially on the responsibility of the that Parliament should not agree to the Scottish ministers, the Scottish Parliament or the amendments, because the approach that Pauline Scottish justice system. The GB commission’s McNeill proposes would provide transparency. Scotland office and Scotland committee will advise the GB commission about its activities in Scotland, How would use of the power be intimated to including its liaison with the Scottish commission. Parliament if not through the process that The Scotland committee is to be chaired by a GB amendments 29 and 35 would provide for? How commission member who has special knowledge could MSPs be held to account for decisions, in of Scotland and whose appointment will be agreed the way that the UK Parliament will hold the GB with the Scottish ministers. That is an element of commissioners to account? There is ambiguity in reinforcement. The committee will be required to that regard, so the minister must clearly set out his include information on its activities in Scotland in expectations. The e-mails that I received this its annual report and to submit copies of that morning from people who oppose amendments 29 report to the Scottish Parliament. That is a joining and 35 suggest that the issue is far more serious of the links. than Parliament initially appreciated. I would welcome clarification from the minister. Pauline McNeill: I need to have the issue clarified. Does the minister envisage that the The Deputy Presiding Officer: I call the power to go to judicial review could be used by the minister. We do not have very long, minister. GB commission in Scotland on a Scotland-only Robert Brown: I am grateful to Pauline McNeill issue? I understand that that is not supposed to be for lodging amendment 29, which raises important the power. issues. The amendment to the Equality Bill that Robert Brown: Absolutely not. As I was at gave the GB commission power to raise cases at pains to say, that could be done only incidentally judicial review in relation to human rights issues to a more general matter. was lodged at a late stage. It was not the UK Government’s original intention to give the GB The Scottish commission will be accountable to commission such a power. We are aware of the this Parliament for its activities, not least the giving potential difficulties that the provision could pose, of consent to such an action. The requirement for so we discussed with the UK Government at an an explanation of that consent deals with the †650 28977 2 NOVEMBER 2006 28978 accountability and information issues. The method Gibson, Rob (Highlands and Islands) (SNP) of conveying to Parliament the intention to give Grahame, Christine (South of Scotland) (SNP) consent should be agreed in the protocol. Hyslop, Fiona (Lothians) (SNP) Ingram, Mr Adam (South of Scotland) (SNP) Those are important assurances, but I want to Lochhead, Richard (Moray) (SNP) give a bit of further reassurance. MacAskill, Mr Kenny (Lothians) (SNP) Marwick, Tricia (Mid Scotland and Fife) (SNP) The Deputy Presiding Officer: Quickly. Mather, Jim (Highlands and Islands) (SNP) Matheson, Michael (Central Scotland) (SNP) Robert Brown: The Scottish Executive is, and Maxwell, Mr Stewart (West of Scotland) (SNP) will continue to be, involved closely in the work on McFee, Mr Bruce (West of Scotland) (SNP) the protocol. We will ensure that agreements are Milne, Mrs Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) in place. Against that background, and given the Morgan, Alasdair (South of Scotland) (SNP) technical deficiencies of amendment 29, I hope Neil, Alex (Central Scotland) (SNP) that Pauline McNeill will accept our reassurances Petrie, Dave (Highlands and Islands) (Con) and be prepared to seek to withdraw it. Robison, Shona (Dundee East) (SNP) Scott, John (Ayr) (Con) The Deputy Presiding Officer: Ms McNeill, I Stevenson, Stewart (Banff and Buchan) (SNP) am afraid that there is no time for you to speak. I Swinney, Mr John (North Tayside) (SNP) ask you simply to say whether you wish to press Watt, Ms Maureen (North East Scotland) (SNP) or withdraw amendment 29. Welsh, Mr Andrew (Angus) (SNP) White, Ms Sandra (Glasgow) (SNP) Pauline McNeill: That is unfortunate, as the AGAINST issue is crucial, Presiding Officer. Alexander, Ms Wendy (Paisley North) (Lab) The Deputy Presiding Officer: Yes—but I am Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) bound by the timetable. Do you wish to press or Baillie, Jackie (Dumbarton) (Lab) Baird, Shiona (North East Scotland) (Green) withdraw? Baker, Richard (North East Scotland) (Lab) Karen Gillon: Presiding Officer, will you accept Ballance, Chris (South of Scotland) (Green) a motion without notice to extend the time for this Ballard, Mark (Lothians) (Green) Barrie, Scott (Dunfermline West) (Lab) group by five minutes? Boyack, Sarah (Edinburgh Central) (Lab) Alasdair Morgan: What have you got to lose, Brankin, Rhona (Midlothian) (Lab) Brown, Robert (Glasgow) (LD) Presiding Officer? Butler, Bill (Glasgow Anniesland) (Lab) The Deputy Presiding Officer: The time on the Byrne, Ms Rosemary (South of Scotland) (Sol) Canavan, Dennis (Falkirk West) (Ind) next group is what I have to lose. I am not Chisholm, Malcolm (Edinburgh North and Leith) (Lab) prepared to exercise that discretion. I ask Pauline Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) McNeill to say whether she wishes to press or Curran, Ms Margaret (Glasgow Baillieston) (Lab) withdraw amendment 29. Deacon, Susan (Edinburgh East and Musselburgh) (Lab) Eadie, Helen (Dunfermline East) (Lab) Pauline McNeill: I seek to withdraw amendment Ferguson, Patricia (Glasgow Maryhill) (Lab) 29. Finnie, Ross (West of Scotland) (LD) Gillon, Karen (Clydesdale) (Lab) The Deputy Presiding Officer: Do members Glen, Marlyn (North East Scotland) (Lab) agree to Pauline McNeill withdrawing amendment Godman, Trish (West Renfrewshire) (Lab) 29? Gordon, Mr Charlie (Glasgow Cathcart) (Lab) Gorrie, Donald (Central Scotland) (LD) Members: No. Harper, Robin (Lothians) (Green) Harvie, Patrick (Glasgow) (Green) The Deputy Presiding Officer: In that case, the Henry, Hugh (Paisley South) (Lab) question is, that amendment 29 be agreed to. Are Home Robertson, John (East Lothian) (Lab) we agreed? Hughes, Janis (Glasgow Rutherglen) (Lab) Jackson, Dr Sylvia (Stirling) (Lab) Members: No. Jackson, Gordon (Glasgow Govan) (Lab) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) The Deputy Presiding Officer: There will be a (Lab) division. Kerr, Mr Andy (East Kilbride) (Lab) Lamont, Johann (Glasgow Pollok) (Lab) FOR Livingstone, Marilyn (Kirkcaldy) (Lab) Adam, Brian (Aberdeen North) (SNP) Lyon, George (Argyll and Bute) (LD) Brownlee, Derek (South of Scotland) (Con) Macdonald, Lewis (Aberdeen Central) (Lab) Crawford, Bruce (Mid Scotland and Fife) (SNP) Macintosh, Mr Kenneth (Eastwood) (Lab) Cunningham, Roseanna (Perth) (SNP) Maclean, Kate (Dundee West) (Lab) Davidson, Mr David (North East Scotland) (Con) Macmillan, Maureen (Highlands and Islands) (Lab) Douglas-Hamilton, Lord James (Lothians) (Con) Martin, Paul (Glasgow Springburn) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) May, Christine (Central Fife) (Lab) Fabiani, Linda (Central Scotland) (SNP) McAveety, Mr Frank (Glasgow Shettleston) (Lab) Fraser, Murdo (Mid Scotland and Fife) (Con) McCabe, Mr Tom (Hamilton South) (Lab)

†651 28979 2 NOVEMBER 2006 28980

McMahon, Michael (Hamilton North and Bellshill) (Lab) Gibson, Rob (Highlands and Islands) (SNP) McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) Grahame, Christine (South of Scotland) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) Hyslop, Fiona (Lothians) (SNP) McNulty, Des (Clydebank and Milngavie) (Lab) Ingram, Mr Adam (South of Scotland) (SNP) Morrison, Mr Alasdair (Western Isles) (Lab) Lochhead, Richard (Moray) (SNP) Muldoon, Bristow (Livingston) (Lab) MacAskill, Mr Kenny (Lothians) (SNP) Mulligan, Mrs Mary (Linlithgow) (Lab) Marwick, Tricia (Mid Scotland and Fife) (SNP) Munro, John Farquhar (Ross, Skye and Inverness West) Mather, Jim (Highlands and Islands) (SNP) (LD) Matheson, Michael (Central Scotland) (SNP) Murray, Dr Elaine (Dumfries) (Lab) Maxwell, Mr Stewart (West of Scotland) (SNP) Oldfather, Irene (Cunninghame South) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Peacock, Peter (Highlands and Islands) (Lab) Milne, Mrs Nanette (North East Scotland) (Con) Peattie, Cathy (Falkirk East) (Lab) Mitchell, Margaret (Central Scotland) (Con) Pringle, Mike (Edinburgh South) (LD) Morgan, Alasdair (South of Scotland) (SNP) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Neil, Alex (Central Scotland) (SNP) Radcliffe, Nora (Gordon) (LD) Petrie, Dave (Highlands and Islands) (Con) Robson, Euan (Roxburgh and Berwickshire) (LD) Robison, Shona (Dundee East) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Scott, John (Ayr) (Con) Scott, Eleanor (Highlands and Islands) (Green) Stevenson, Stewart (Banff and Buchan) (SNP) Scott, Tavish (Shetland) (LD) Swinney, Mr John (North Tayside) (SNP) Smith, Elaine (Coatbridge and Chryston) (Lab) Watt, Ms Maureen (North East Scotland) (SNP) Smith, Iain (North East Fife) (LD) Welsh, Mr Andrew (Angus) (SNP) Smith, Margaret (Edinburgh West) (LD) White, Ms Sandra (Glasgow) (SNP) Stephen, Nicol (Aberdeen South) (LD) Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) AGAINST (LD) Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) Wallace, Mr Jim (Orkney) (LD) Baillie, Jackie (Dumbarton) (Lab) Whitefield, Karen (Airdrie and Shotts) (Lab) Baird, Shiona (North East Scotland) (Green) Wilson, Allan (Cunninghame North) (Lab) Ballance, Chris (South of Scotland) (Green) Ballard, Mark (Lothians) (Green) ABSTENTIONS Barrie, Scott (Dunfermline West) (Lab) Fox, Colin (Lothians) (SSP) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) The Deputy Presiding Officer: the result of the Brown, Robert (Glasgow) (LD) division is: For 32, Against 73, Abstentions 1. Butler, Bill (Glasgow Anniesland) (Lab) Byrne, Ms Rosemary (South of Scotland) (Sol) Amendment 29 disagreed to. Canavan, Dennis (Falkirk West) (Ind) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Section 4B—Strategic plans Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Ms Margaret (Glasgow Baillieston) (Lab) Amendments 30 to 34 moved—[Robert Deacon, Susan (Edinburgh East and Musselburgh) (Lab) Brown]—and agreed to. Eadie, Helen (Dunfermline East) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) 16:45 Fox, Colin (Lothians) (SSP) Gillon, Karen (Clydesdale) (Lab) The Deputy Presiding Officer: Amendment 35, Glen, Marlyn (North East Scotland) (Lab) in the name of Pauline McNeill, has already been Godman, Trish (West Renfrewshire) (Lab) debated. Ms McNeill, do you wish to move Gordon, Mr Charlie (Glasgow Cathcart) (Lab) amendment 35? Gorrie, Donald (Central Scotland) (LD) Harper, Robin (Lothians) (Green) Pauline McNeill: No. Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Amendment 35 moved—[Stewart Stevenson]. Home Robertson, John (East Lothian) (Lab) The Deputy Presiding Officer: The question is, Hughes, Janis (Glasgow Rutherglen) (Lab) Jackson, Dr Sylvia (Stirling) (Lab) that amendment 35 be agreed to. Are we agreed? Jackson, Gordon (Glasgow Govan) (Lab) Members: No. Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) The Deputy Presiding Officer: There will be a Kerr, Mr Andy (East Kilbride) (Lab) division. Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) FOR Lyon, George (Argyll and Bute) (LD) Macdonald, Lewis (Aberdeen Central) (Lab) Adam, Brian (Aberdeen North) (SNP) Macintosh, Mr Kenneth (Eastwood) (Lab) Brownlee, Derek (South of Scotland) (Con) Maclean, Kate (Dundee West) (Lab) Crawford, Bruce (Mid Scotland and Fife) (SNP) Macmillan, Maureen (Highlands and Islands) (Lab) Cunningham, Roseanna (Perth) (SNP) Martin, Paul (Glasgow Springburn) (Lab) Davidson, Mr David (North East Scotland) (Con) May, Christine (Central Fife) (Lab) Douglas-Hamilton, Lord James (Lothians) (Con) McAveety, Mr Frank (Glasgow Shettleston) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) McCabe, Mr Tom (Hamilton South) (Lab) Fabiani, Linda (Central Scotland) (SNP) McMahon, Michael (Hamilton North and Bellshill) (Lab) Fraser, Murdo (Mid Scotland and Fife) (Con)

†652 28981 2 NOVEMBER 2006 28982

McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) Section 11—Power to intervene McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Amendments 72 to 82 moved—[Robert Morrison, Mr Alasdair (Western Isles) (Lab) Brown]—and agreed to. Muldoon, Bristow (Livingston) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) Section 12—Annual report Munro, John Farquhar (Ross, Skye and Inverness West) (LD) Amendments 83 to 88 moved—[Robert Murray, Dr Elaine (Dumfries) (Lab) Brown]—and agreed to. Oldfather, Irene (Cunninghame South) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Section 13—Publication of reports Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Amendments 89 to 91 moved—[Robert Radcliffe, Nora (Gordon) (LD) Brown]—and agreed to. Robson, Euan (Roxburgh and Berwickshire) (LD) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Section 15—Protection from actions for Scott, Eleanor (Highlands and Islands) (Green) defamation Scott, Tavish (Shetland) (LD) Smith, Elaine (Coatbridge and Chryston) (Lab) Amendments 92 to 94 moved—[Robert Smith, Iain (North East Fife) (LD) Brown]—and agreed to. Smith, Margaret (Edinburgh West) (LD) Stephen, Nicol (Aberdeen South) (LD) Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) Section 18—Interpretation (LD) Wallace, Mr Jim (Orkney) (LD) Amendments 95 and 96 moved—[Robert Whitefield, Karen (Airdrie and Shotts) (Lab) Brown]—and agreed to. Wilson, Allan (Cunninghame North) (Lab) After section 18 The Deputy Presiding Officer: The result of the division is: For 32, Against 72, Abstentions 0. The Deputy Presiding Officer: Before I call amendment 97, in the name of Mary Mulligan, Amendment 35 disagreed to. which is grouped with amendments 99, 129, 130, Amendments 36 to 40 moved—[Robert 133, 135, 138, 151, 154 and 155, I direct Brown]—and agreed to. members’ attention to the pre-emptions and point out in particular that amendments 129 and 130 are Section 5—Power to conduct inquiries direct alternatives and that the second will therefore replace the first. The pre-emptions are Amendments 41 to 48 moved—[Robert given in the groupings document. Brown]—and agreed to. Alasdair Morgan: Will you explain that? Section 6—Restrictions as to scope of inquiry The Deputy Presiding Officer: I do not have Amendments 49 to 53 moved—[Robert time. Brown]—and agreed to. Mrs Mary Mulligan (Linlithgow) (Lab): Amendment 97 responds to a discussion that Section 7—Evidence many members have had on co-location of the Amendments 54 to 59 moved—[Robert SCHR. The amendment would allow the Scottish Brown]—and agreed to. Parliamentary Corporate Body to determine the initial location of the commission’s office. There Section 8—Places of detention: powers of are two reasons why co-location should be entry, inspection and interview supported, the first of which is financial. There is an opportunity for co-location to lead to sharing of Amendment 60 moved—[Robert Brown]—and administrative costs, which will allow the majority agreed to. of the budget to be spent on the true business of the commission. At this stage, I have to admit that Section 9—Report of inquiry I favour co-location with the GB body—the CEHR. Amendments 61 to 65 moved—[Robert The more important point on co-location is that it Brown]—and agreed to. will provide a one-stop shop for people approaching either of the human rights bodies, Section 10—Confidentiality of information which would benefit the public, help to overcome confusion about which commission covers which Amendments 66 to 71 moved—[Robert element of human rights and allow those bodies to Brown]—and agreed to. complement each other and work closely together. Amendment 97 deals with the practical difficulties of co-location that could arise due to the

†653 28983 2 NOVEMBER 2006 28984

different timings of the establishment of the CEHR minister acknowledges that the SPCB will be and the SCHR. It would allow the corporate body required to give final approval if there is a change to fill that gap in timing and to ensure that of location in the future. On that basis, I will not Parliament’s wishes were carried out. move amendment 130. I understand the proposal in Margaret Mitchell’s Robert Brown: I welcome amendments 97 and amendment 129. The committee discussed the 99, which were lodged by Mary Mulligan. They are idea, but the practical reality is that the Scottish sensible amendments that will allow the Scottish public services ombudsman is located here in Parliamentary Corporate Body to prepare for the Edinburgh and there is a commitment to locate the establishment of the commission; in particular, CEHR in Glasgow. We have to take a practical they will allow the SPCB to discuss with the decision on where the SCHR should be located, if implementation team for the GB commission the indeed it is to be co-located. On balance, there are possibility of co-locating the two bodies. There is a more advantages to the SCHR being co-located commitment to identify suitable premises for the with the CEHR, so I will not support amendment Scottish office of the GB commission in early 129. 2007, which is perhaps before members of the Scottish commission can be appointed. It would be Amendment 99, in my name, is a procedural one disappointing if the opportunity to discuss co- that would exclude from the general provisions the location with the GB commission was lost because new section that is proposed in amendment 97. of the timing of the appointments process. I move amendment 97. Amendments 97 and 99 would allow the SPCB fully to consider the options and to provide Margaret Mitchell: Amendment 129 provides support. for the commission’s office to be co-located with that of the Scottish public services ombudsman. I understand the rationale behind Pauline That would offer value for money and end the McNeill’s amendment 130 and her request for an uncertainty about where the commission’s office undertaking on the commission’s final location, but will be located. Mary Mulligan’s amendment 97 they are unnecessary. Paragraph 10(1) of would not achieve that. I recommend my schedule 1 states: amendment 129 in the interests of providing value “The Commissioner’s determination of the location of the for money, ending uncertainty and encouraging Commissioner’s office premises is subject to the approval co-operation and dialogue between the two of the Parliamentary corporation.” bodies. In effect, the commission will need the SPCB’s approval if it wants to move from its initial location. Amendment 135 stipulates that the Amendment 130, under which the SPCB would be commission’s staff must be drawn from the staff responsible for deciding on the location, is who are employed by the Scottish public services therefore made redundant by Mary Mulligan’s ombudsman, who are experienced in dealing with amendments 97 and 99. complaints against public bodies, including complaints that have a human rights aspect. Margaret Mitchell’s amendments 129 and 135 Again, value for money is paramount and there take us back, as she said, to earlier arguments would be considerable savings on pensions, about the Scottish public services ombudsman salaries, social security, advertising and and revisit an issue that we discussed at allowances. The provision would encourage the considerable length at stage 2. We have moved two organisations to work closely together and to on in the decision-making process, but I will make draw on the experience of the Scottish public an important point that has been lost. If the services ombudsman’s staff in handling commission is co-located with the Scottish public complaints. services ombudsman—which is perfectly possible—we would have to identify whether there Pauline McNeill: Amendment 130 would give was space in the ombudsman’s office, what the the SPCB the power to determine the location of costs would be, what the arrangements would be, the commission’s office. We have heard that there and whether there were implications for the is a case for the commission to be co-located with ombudsman. That is not the kind of thing that either the Scottish public services ombudsman or Parliament should directly and immediately the GB commission. At stage 1, the committee determine, and I believe that there are flaws in the said that a decision should be made on either of argument that Margaret Mitchell has allowed those two options. herself to get into. Such matters ought to be Amendment 130 would provide that the SPCB decided by the SPCB, in accordance with need determine the commission’s final location, and in accordance with the statute that directs the whereas Mary Mulligan’s amendment 97 would SPCB. Margaret Mitchell’s amendments would provide that the SPCB determine the prevent the commission and Parliament from commission’s initial location. I am happy to agree making other arrangements that might be more to Mary Mulligan’s amendment as long as the practical and efficient. †654 28985 2 NOVEMBER 2006 28986

I turn to the Executive amendments. Section 19—Short title, Crown application and Amendment 133 will remove paragraph 10(2) of commencement schedule 1, which is made redundant by Amendment 98 moved—[Robert Brown]—and amendment 138. The purpose of amendment 138 agreed to. is—in response to views that were expressed during committee debates at stage 2—to allow the Amendment 99 moved—[Mrs Mary Mulligan]— commission to share services with other and agreed to. organisations, and to require the commission to SCHEDULE 1—SCOTTISH COMMISSIONER FOR HUMAN consider the desirability of entering into such RIGHTS arrangements. Amendment 138 will ensure that the commission will have proper regard to making The Deputy Presiding Officer: Amendment the most efficient use of its resources, not just in 100A, in the name of Des McNulty, has already terms of location but in exploring options for been debated with amendment 5. Mr McNulty, do sharing premises, staff, services or other you wish to press amendment 100A? resources with other public bodies. Amendment Des McNulty: No. 155 will insert a new subparagraph that will require the commission to include in its budget proposal a Amendment 100A moved—[Stewart Stevenson]. statement that it has complied with its duty, under The Deputy Presiding Officer: The question is, amendment 138, to consider the options for that amendment 100A be agreed to. Are we sharing services. Amendments 151 and 154 are agreed? consequential amendments that will change the wording of paragraphs 13(2) and 13(3) of Members: No. schedule 1 to include the phrase “use of The Deputy Presiding Officer: There will be a resources”. division. The Executive’s amendments are worthy FOR amendments that will widen the direction and Adam, Brian (Aberdeen North) (SNP) focus of the SPCB’s powers in connection with the Aitken, Bill (Glasgow) (Con) commission, and they respond to the concerns Brocklebank, Mr Ted (Mid Scotland and Fife) (Con) that were quite properly expressed by the Finance Brownlee, Derek (South of Scotland) (Con) Committee, the Justice 1 Committee and others Crawford, Bruce (Mid Scotland and Fife) (SNP) during the course of the bill’s consideration. I Cunningham, Roseanna (Perth) (SNP) recommend that they be accepted by Parliament. Davidson, Mr David (North East Scotland) (Con) Douglas-Hamilton, Lord James (Lothians) (Con) Stewart Stevenson: I take it from the minister’s Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) speech that the Executive accepts amendments Fabiani, Linda (Central Scotland) (SNP) Fergusson, Alex (Galloway and Upper Nithsdale) (Con) 97 and 99. Fraser, Murdo (Mid Scotland and Fife) (Con) Robert Brown indicated agreement. Gibson, Rob (Highlands and Islands) (SNP) Grahame, Christine (South of Scotland) (SNP) Stewart Stevenson: That is helpful. It makes Hyslop, Fiona (Lothians) (SNP) the debate on the group much clearer, so I need Lochhead, Richard (Moray) (SNP) not detain Parliament further. MacAskill, Mr Kenny (Lothians) (SNP) Marwick, Tricia (Mid Scotland and Fife) (SNP) Members: Hear, hear. Mather, Jim (Highlands and Islands) (SNP) Matheson, Michael (Central Scotland) (SNP) The Deputy Presiding Officer: I invite Mary Maxwell, Mr Stewart (West of Scotland) (SNP) Mulligan to wind up. McFee, Mr Bruce (West of Scotland) (SNP) McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) Mrs Mulligan: Amendment 97 will allow for co- Milne, Mrs Nanette (North East Scotland) (Con) location—I said earlier that I favour co-location Mitchell, Margaret (Central Scotland) (Con) with the CEHR. However, whatever the option is, I Morgan, Alasdair (South of Scotland) (SNP) Neil, Alex (Central Scotland) (SNP) am not sure why Margaret Mitchell thought that Petrie, Dave (Highlands and Islands) (Con) there were no savings to be made from co- Robison, Shona (Dundee East) (SNP) location, regardless of where she thought it would Stevenson, Stewart (Banff and Buchan) (SNP) be, and I am not sure why she is not supporting Swinney, Mr John (North Tayside) (SNP) my amendment. There are problems in co-locating Watt, Ms Maureen (North East Scotland) (SNP) with the SPSO, the practical difficulty being that Welsh, Mr Andrew (Angus) (SNP) White, Ms Sandra (Glasgow) (SNP) that body is already established. How could we fit another body into its offices? I hope that, given the AGAINST reassurances that she has heard, Margaret Alexander, Ms Wendy (Paisley North) (Lab) Mitchell will find herself able to support my Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) amendments. Baillie, Jackie (Dumbarton) (Lab) Baird, Shiona (North East Scotland) (Green) Amendment 97 agreed to. Baker, Richard (North East Scotland) (Lab)

†655 28987 2 NOVEMBER 2006 28988

Ballance, Chris (South of Scotland) (Green) Amendment 100A disagreed to. Barrie, Scott (Dunfermline West) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Amendments 100 to 104 moved—[Robert Brankin, Rhona (Midlothian) (Lab) Brown]—and agreed to. Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Canavan, Dennis (Falkirk West) (Ind) 17:00 Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) The Deputy Presiding Officer: Group 7 is on Curran, Ms Margaret (Glasgow Baillieston) (Lab) commission finance and accountability issues. Deacon, Susan (Edinburgh East and Musselburgh) (Lab) Amendment 105, in the name of Pauline McNeill, Eadie, Helen (Dunfermline East) (Lab) is grouped with amendment 157. Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) Pauline McNeill: Both amendments are about Fox, Colin (Lothians) (SSP) overspend and financial accountability. Gillon, Karen (Clydesdale) (Lab) Amendment 105 would amend schedule 1 so that Glen, Marlyn (North East Scotland) (Lab) it would be clear that the commission is Godman, Trish (West Renfrewshire) (Lab) Gordon, Mr Charlie (Glasgow Cathcart) (Lab) independent of the Parliament, the Scottish Gorrie, Donald (Central Scotland) (LD) Executive and the corporate body in exercising its Harper, Robin (Lothians) (Green) powers, except when it overspends on its budget. Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Amendment 157 deals with what would happen Home Robertson, John (East Lothian) (Lab) if the commission overspent its budget, and Hughes, Janis (Glasgow Rutherglen) (Lab) provides that, for the remainder of the financial Jackson, Dr Sylvia (Stirling) (Lab) year in question, the corporate body would be able Jackson, Gordon (Glasgow Govan) (Lab) to direct the commission to ensure that it remains Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) within its budget. Kerr, Mr Andy (East Kilbride) (Lab) In creating any commission, all members are Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) concerned that if we lay down a budget and give a Lyon, George (Argyll and Bute) (LD) commission powers, we expect it, broadly Macdonald, Lewis (Aberdeen Central) (Lab) speaking, to remain within that budget. I was Macintosh, Mr Kenneth (Eastwood) (Lab) concerned when I read in the last week or so that Maclean, Kate (Dundee West) (Lab) the commissions that we have already created Macmillan, Maureen (Highlands and Islands) (Lab) have come back to the Parliament for sums of Martin, Paul (Glasgow Springburn) (Lab) May, Christine (Central Fife) (Lab) money totalling almost £6 million. McAveety, Mr Frank (Glasgow Shettleston) (Lab) It would not interfere with the commission’s McCabe, Mr Tom (Hamilton South) (Lab) McMahon, Michael (Hamilton North and Bellshill) (Lab) independence if we took the view that if we give it McNeill, Pauline (Glasgow Kelvin) (Lab) a million pounds and it spends more than that, the Morrison, Mr Alasdair (Western Isles) (Lab) corporate body should be able to issue directions Muldoon, Bristow (Livingston) (Lab) to ensure that, apart from anything else, there is Mulligan, Mrs Mary (Linlithgow) (Lab) no liability. Again, I am looking for assurances. Munro, John Farquhar (Ross, Skye and Inverness West) (LD) I realise that there is a pretty great onus on the Murray, Dr Elaine (Dumfries) (Lab) corporate body. I hope that its members Oldfather, Irene (Cunninghame South) (Lab) understand that many MSPs’ support is dependent Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) on the corporate body having powers and financial Pringle, Mike (Edinburgh South) (LD) control. That places an onus on the corporate Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) body, but it is necessary. We are accountable for Radcliffe, Nora (Gordon) (LD) the money that we spend, and we need to tighten Robson, Euan (Roxburgh and Berwickshire) (LD) the system up as far as possible. Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Scott, Eleanor (Highlands and Islands) (Green) I hope to get some assurances from the Scott, Tavish (Shetland) (LD) minister, and it might be helpful to hear a Smith, Elaine (Coatbridge and Chryston) (Lab) contribution from a member of the corporate body Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) to confirm that it accepts that the will of Parliament Stephen, Nicol (Aberdeen South) (LD) is that it should have such powers and should Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) exercise them in the way that Parliament intends. (LD) Wallace, Mr Jim (Orkney) (LD) I move amendment 105. Whitefield, Karen (Airdrie and Shotts) (Lab) Wilson, Allan (Cunninghame North) (Lab) Stewart Stevenson: It might be good news for Parliament generally. The Deputy Presiding Officer: The result of the division is: For 34, Against 70, Abstentions 0. I used to work for a gentleman called Peter Burt, who will shortly report to ministers on local

†656 28989 2 NOVEMBER 2006 28990 government finance. When he was boss of a bank, the past. We have the Finance Committee report he had an excellent saying about expenditure: and we are creating a new body, so let us get “We have very deep pockets but very short arms.” things right now, so that we do not have to make changes in the future. That is what amendments Amendments 105 and 157 address precisely 105 and 157 are about; they are not about singling that issue. Although there might be £31 billion in out a particular body. We need to learn the the Scottish Executive budget and we are lessons of the past. debating something with an approximate cost of £1 million, we have to be careful to draw Patrick Harvie: If the member is correct to say legislation so that it does not give unfettered that changes will have to be made to existing financial power to an external body to put its deep bodies, those changes will have to be made hand in our sometimes rather shallow pocket. anyway and it will not be any more complex to Pauline McNeill’s approach in amendments 105 change the arrangements for the commission for and 157 is useful and, if properly observed by the human rights at the same time. commission, will mean that it has the discipline not Mr Swinney: The Scottish Parliamentary to exceed the budget that it is given. If it does Corporate Body has been put in a difficult position exceed it, that will compromise its independence, by legislation that the Parliament has passed. which neither it nor we will want. I am minded to When the SPCB has sought to exercise legitimate support the amendments. financial constraints on the activities of Karen Gillon: I will certainly be supporting ombudsmen and commissioners, it has, in effect, amendments 105 and 157. been accused of questioning and seeking to jeopardise their independence. The same It is important to remind ourselves what accusation has been levelled at the Finance schedule 1 says. It says that the SCHR should Committee when it has expressed similar prepare a budget; that if that budget changes it reservations. should prepare a revised budget; and that even if it exceeds that budget, the additional money can Although no one is questioning the still be paid to it. At some point, the Parliament has commissioners’ independence, no body can be to exercise some financial control. That has not given a blank cheque that allows it to do what it been the case on a number of occasions: it has wants. Financial controls must be in place so that happened twice with Scottish Opera, once with we, as elected members of the Parliament who Scottish Enterprise—I hope for the last time—and are responsible for a proportion of the public with the commissioners. On such occasions, the finances of Scotland, can be answerable to our Parliament has been left with no option but to pay electorate for the decisions that we take. Pauline further moneys to bodies that have overspent their McNeill’s amendments 105 and 157 are right for budgets. That is simply unacceptable. the bill. Karen Gillon was absolutely right—we are Today, we have an opportunity to do something considering the Scottish Commissioner for Human about that, to learn the lessons of the past and to Rights Bill, not a bill to set up a consolidated fund make changes for the future. Amendments 105 for ombudsmen. As the Finance Committee and 157 offer a way forward, so I urge the suggested, we should get things right in the bill ministers to accept them. We can have financial before we start on the other bodies. accountability without encroaching on the And another thing—we should also ensure that independence of commissioners. It is not the the Parliament sends the corporate body a clear commissioners but we who will be judged by the message of encouragement that demonstrates Scottish people on how our budgets are used. We that members welcome the direction in which it is should not be held over a barrel by anyone, so I travelling. urge members to support amendments 105 and 157. Robert Brown: This is an important issue. I appreciate and agree with Pauline McNeill’s Patrick Harvie: I will be brief. I take seriously concerns that the corporate body should be able the arguments on financial accountability that to exercise proper control over the commission’s Pauline McNeill and Karen Gillon have made, but I use of public funds. In a former existence as a hope that amendment 105 will be withdrawn. If we member of the corporate body, I had some are talking about a serious proposal on financial dealings with such matters, which were not too far accountability, I can think of no reason why the removed from the building in which we are sitting. I proposed commission for human rights should be have more of an appreciation of some of the treated any differently from the other bodies. We issues and pressures involved than do many other should consider a proposal on all the various members. commissions and commissioners separately from the bill. The budget is the budget. No member would expect the commission or, indeed, any other body Karen Gillon: The position that we are in now is to go over its approved budget. The issue with the different to the positions that we have been in in †657 28991 2 NOVEMBER 2006 28992

existing commissioners has been not so much services. Ultimately, the Parliament has the whip their going over budgets as their making requests hand. The corporate body acts in the interests of for budget increases in subsequent years which, the Parliament. I say respectfully that the current although important, is a different issue. arrangements allow it all necessary powers to do so. I hope that members will accept that on Amendments 105 and 157 are not necessary to rereading schedule 1. allow the corporate body to maintain oversight of the commission’s spending. Paragraph 13 of Pauline McNeill: It is clear that members of the schedule 1, to which Karen Gillon referred, already Parliament who will be supporting the bill expect provides that the commission’s annual budget will that the corporate body will be able to take be subject to the corporate body’s approval. financial control where necessary without it being Paragraph 13(4) states that the corporate body is seen to be interfering in any way with the not required to pay any expenses incurred by the independence of the commission which, for me, is commission that are not included in the approved fundamental. annual budget, which is as it should be. That I agree with Patrick Harvie that the rules should automatically gives the corporate body leverage apply to all commissions, but I also agree with over the activity of the commission in the unlikely Karen Gillon. I have learned lessons from the way event that it exceeds its budget. That is unlikely in which I have voted in the past, and I will not act because we have a structure of accountable in the same way again. If I am to vote to pass the officers and financial procedures, which enable bill, I must have the assurance that financial both the commission and the corporate body, control will be exercised through the corporate which receives figures from the commission, to be body, which represents the Parliament. I hope that aware of what is taking place. the will of Parliament is noted. I agree entirely that there is a need for The minister said that there are levers to ensure mechanisms to ensure proper scrutiny and control that where there is overspend we do not have to of public funds, but they have to be proportionate. sign off the budget. If I were to withdraw The current provisions give the corporate body the amendment 105, I would have to put a bit of trust necessary degree of control over the in that. commission’s budget and expenditure, whereas Pauline McNeill’s amendments 105 and 157 would Parliament must pay attention. It must focus on give it considerable powers of direction over all the implementation of the commission and, aspects of the commission’s activity. That might beyond that, it must scrutinise not just the not be what is intended, but that is what the commission but every other body that we have amendments would provide, even if the created to ensure that they do what we intended commission went fractionally over its annual them to do. If we are concerned about finances budget allocation. spiralling out of control, we should be able to do something about it without it being seen as in any Karen Gillon: Given all that the minister has way trying to interfere with a body’s purpose, as said, what is the point of paragraph 13(5) of Karen Gillon said. schedule 1? In what circumstances would it be used and in what circumstances would the On that basis, and on the balance of what I have corporate body—without the provisions in Pauline heard, I seek Parliament’s permission to withdraw McNeill’s amendments—have the authority to say amendment 105. to a commission, “No, you cannot have that money,” without being completely vilified in the The Deputy Presiding Officer: Do members press and accused of somehow undermining the agree to the member’s request that amendment 105 be withdrawn? independence of a parliamentary commission? Members: No. Robert Brown: The issue is not the press but the power of the corporate body. Paragraph 13(4) The Deputy Presiding Officer: Therefore, the states expressly that nothing in the bill requires the question is, that amendment 105 be agreed to. parliamentary corporation to pay any expenses Are we agreed? incurred by the SCHR that exceed the budget. That is absolutely clear. Paragraph 13(5) provides Members: No. for an exceptional procedure. I cannot envisage The Deputy Presiding Officer: There will be a circumstances in which it is likely to be used, but it division. provides for circumstances that might arise. FOR Members should bear in mind the fact that the Adam, Brian (Aberdeen North) (SNP) corporate body is the trustee of this Parliament. If Aitken, Bill (Glasgow) (Con) it became necessary, the Parliament could dismiss Brocklebank, Mr Ted (Mid Scotland and Fife) (Con) the members of the corporate body and give Canavan, Dennis (Falkirk West) (Ind) directions to it on the way in which to operate its Crawford, Bruce (Mid Scotland and Fife) (SNP) †658 28993 2 NOVEMBER 2006 28994

Cunningham, Roseanna (Perth) (SNP) Macintosh, Mr Kenneth (Eastwood) (Lab) Davidson, Mr David (North East Scotland) (Con) Maclean, Kate (Dundee West) (Lab) Douglas-Hamilton, Lord James (Lothians) (Con) Macmillan, Maureen (Highlands and Islands) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Martin, Paul (Glasgow Springburn) (Lab) Fabiani, Linda (Central Scotland) (SNP) May, Christine (Central Fife) (Lab) Fergusson, Alex (Galloway and Upper Nithsdale) (Con) McAveety, Mr Frank (Glasgow Shettleston) (Lab) Fraser, Murdo (Mid Scotland and Fife) (Con) McCabe, Mr Tom (Hamilton South) (Lab) Gibson, Rob (Highlands and Islands) (SNP) McMahon, Michael (Hamilton North and Bellshill) (Lab) Gillon, Karen (Clydesdale) (Lab) McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) Grahame, Christine (South of Scotland) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) Hyslop, Fiona (Lothians) (SNP) McNulty, Des (Clydebank and Milngavie) (Lab) Ingram, Mr Adam (South of Scotland) (SNP) Morrison, Mr Alasdair (Western Isles) (Lab) Lochhead, Richard (Moray) (SNP) Muldoon, Bristow (Livingston) (Lab) MacAskill, Mr Kenny (Lothians) (SNP) Mulligan, Mrs Mary (Linlithgow) (Lab) Marwick, Tricia (Mid Scotland and Fife) (SNP) Munro, John Farquhar (Ross, Skye and Inverness West) Mather, Jim (Highlands and Islands) (SNP) (LD) Matheson, Michael (Central Scotland) (SNP) Murray, Dr Elaine (Dumfries) (Lab) Maxwell, Mr Stewart (West of Scotland) (SNP) Oldfather, Irene (Cunninghame South) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Peacock, Peter (Highlands and Islands) (Lab) McGrigor, Mr Jamie (Highlands and Islands) (Con) Peattie, Cathy (Falkirk East) (Lab) Milne, Mrs Nanette (North East Scotland) (Con) Pringle, Mike (Edinburgh South) (LD) Mitchell, Margaret (Central Scotland) (Con) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Morgan, Alasdair (South of Scotland) (SNP) Radcliffe, Nora (Gordon) (LD) Neil, Alex (Central Scotland) (SNP) Robson, Euan (Roxburgh and Berwickshire) (LD) Petrie, Dave (Highlands and Islands) (Con) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Robison, Shona (Dundee East) (SNP) Scott, Eleanor (Highlands and Islands) (Green) Scott, John (Ayr) (Con) Scott, Tavish (Shetland) (LD) Stevenson, Stewart (Banff and Buchan) (SNP) Smith, Elaine (Coatbridge and Chryston) (Lab) Swinney, Mr John (North Tayside) (SNP) Smith, Iain (North East Fife) (LD) Watt, Ms Maureen (North East Scotland) (SNP) Smith, Margaret (Edinburgh West) (LD) Welsh, Mr Andrew (Angus) (SNP) Stephen, Nicol (Aberdeen South) (LD) White, Ms Sandra (Glasgow) (SNP) Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD) AGAINST Wallace, Mr Jim (Orkney) (LD) Alexander, Ms Wendy (Paisley North) (Lab) Whitefield, Karen (Airdrie and Shotts) (Lab) Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) Wilson, Allan (Cunninghame North) (Lab) Baillie, Jackie (Dumbarton) (Lab) Baird, Shiona (North East Scotland) (Green) The Deputy Presiding Officer: The result of Baker, Richard (North East Scotland) (Lab) the division is: For 37, Against 71, Abstentions 0. Ballance, Chris (South of Scotland) (Green) Ballard, Mark (Lothians) (Green) Amendment 105 disagreed to. Barrie, Scott (Dunfermline West) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Amendments 106 to 128 moved—[Robert Brankin, Rhona (Midlothian) (Lab) Brown]—and agreed to. Brown, Robert (Glasgow) (LD) Amendments 129 and 130 not moved. Butler, Bill (Glasgow Anniesland) (Lab) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Amendments 131 to 134 moved—[Robert Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Brown]—and agreed to. Curran, Frances (West of Scotland) (SSP) Curran, Ms Margaret (Glasgow Baillieston) (Lab) Amendment 135 moved—[Margaret Mitchell]. Deacon, Susan (Edinburgh East and Musselburgh) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) 17:15 Fox, Colin (Lothians) (SSP) Glen, Marlyn (North East Scotland) (Lab) The Deputy Presiding Officer: The question is, Godman, Trish (West Renfrewshire) (Lab) that amendment 135 be agreed to. Are we Gordon, Mr Charlie (Glasgow Cathcart) (Lab) agreed? Gorrie, Donald (Central Scotland) (LD) Harper, Robin (Lothians) (Green) Members: No. Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) The Deputy Presiding Officer: There will be a Home Robertson, John (East Lothian) (Lab) division. Hughes, Janis (Glasgow Rutherglen) (Lab) Jackson, Dr Sylvia (Stirling) (Lab) FOR Jackson, Gordon (Glasgow Govan) (Lab) Adam, Brian (Aberdeen North) (SNP) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) Aitken, Bill (Glasgow) (Con) (Lab) Brocklebank, Mr Ted (Mid Scotland and Fife) (Con) Kerr, Mr Andy (East Kilbride) (Lab) Crawford, Bruce (Mid Scotland and Fife) (SNP) Lamont, Johann (Glasgow Pollok) (Lab) Cunningham, Roseanna (Perth) (SNP) Livingstone, Marilyn (Kirkcaldy) (Lab) Davidson, Mr David (North East Scotland) (Con) Lyon, George (Argyll and Bute) (LD) Douglas-Hamilton, Lord James (Lothians) (Con) Macdonald, Lewis (Aberdeen Central) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

†659 28995 2 NOVEMBER 2006 28996

Fabiani, Linda (Central Scotland) (SNP) McAveety, Mr Frank (Glasgow Shettleston) (Lab) Fergusson, Alex (Galloway and Upper Nithsdale) (Con) McCabe, Mr Tom (Hamilton South) (Lab) Fraser, Murdo (Mid Scotland and Fife) (Con) McMahon, Michael (Hamilton North and Bellshill) (Lab) Gibson, Rob (Highlands and Islands) (SNP) McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) Grahame, Christine (South of Scotland) (SNP) McNeill, Pauline (Glasgow Kelvin) (Lab) Hyslop, Fiona (Lothians) (SNP) McNulty, Des (Clydebank and Milngavie) (Lab) Ingram, Mr Adam (South of Scotland) (SNP) Morrison, Mr Alasdair (Western Isles) (Lab) Lochhead, Richard (Moray) (SNP) Muldoon, Bristow (Livingston) (Lab) MacAskill, Mr Kenny (Lothians) (SNP) Mulligan, Mrs Mary (Linlithgow) (Lab) Marwick, Tricia (Mid Scotland and Fife) (SNP) Murray, Dr Elaine (Dumfries) (Lab) Mather, Jim (Highlands and Islands) (SNP) Oldfather, Irene (Cunninghame South) (Lab) Matheson, Michael (Central Scotland) (SNP) Peacock, Peter (Highlands and Islands) (Lab) Maxwell, Mr Stewart (West of Scotland) (SNP) Peattie, Cathy (Falkirk East) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Pringle, Mike (Edinburgh South) (LD) McGrigor, Mr Jamie (Highlands and Islands) (Con) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Milne, Mrs Nanette (North East Scotland) (Con) Radcliffe, Nora (Gordon) (LD) Mitchell, Margaret (Central Scotland) (Con) Robson, Euan (Roxburgh and Berwickshire) (LD) Morgan, Alasdair (South of Scotland) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Neil, Alex (Central Scotland) (SNP) Scott, Eleanor (Highlands and Islands) (Green) Petrie, Dave (Highlands and Islands) (Con) Scott, Tavish (Shetland) (LD) Robison, Shona (Dundee East) (SNP) Smith, Elaine (Coatbridge and Chryston) (Lab) Stevenson, Stewart (Banff and Buchan) (SNP) Smith, Iain (North East Fife) (LD) Swinney, Mr John (North Tayside) (SNP) Smith, Margaret (Edinburgh West) (LD) Watt, Ms Maureen (North East Scotland) (SNP) Stephen, Nicol (Aberdeen South) (LD) Welsh, Mr Andrew (Angus) (SNP) Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) White, Ms Sandra (Glasgow) (SNP) (LD) Wallace, Mr Jim (Orkney) (LD) AGAINST Whitefield, Karen (Airdrie and Shotts) (Lab) Alexander, Ms Wendy (Paisley North) (Lab) Wilson, Allan (Cunninghame North) (Lab) Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) Baillie, Jackie (Dumbarton) (Lab) The Deputy Presiding Officer: The result of Baird, Shiona (North East Scotland) (Green) the division is: For 34, Against 71, Abstentions 0. Baker, Richard (North East Scotland) (Lab) Ballance, Chris (South of Scotland) (Green) Amendment 135 disagreed to. Barrie, Scott (Dunfermline West) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Amendments 136 to 156 moved—[Robert Brankin, Rhona (Midlothian) (Lab) Brown]—and agreed to. Brown, Robert (Glasgow) (LD) The Deputy Presiding Officer: Does Pauline Butler, Bill (Glasgow Anniesland) (Lab) Byrne, Ms Rosemary (South of Scotland) (Sol) McNeill wish to move amendment 157? Canavan, Dennis (Falkirk West) (Ind) Pauline McNeill: No. Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Amendment 157 moved—[Stewart Stevenson]. Curran, Ms Margaret (Glasgow Baillieston) (Lab) Deacon, Susan (Edinburgh East and Musselburgh) (Lab) The Deputy Presiding Officer: The question is, Eadie, Helen (Dunfermline East) (Lab) that amendment 157 be agreed to. Are we Ferguson, Patricia (Glasgow Maryhill) (Lab) agreed? Finnie, Ross (West of Scotland) (LD) Fox, Colin (Lothians) (SSP) Members: No. Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) The Deputy Presiding Officer: There will be a Godman, Trish (West Renfrewshire) (Lab) division. Gordon, Mr Charlie (Glasgow Cathcart) (Lab) Gorrie, Donald (Central Scotland) (LD) FOR Harper, Robin (Lothians) (Green) Adam, Brian (Aberdeen North) (SNP) Harvie, Patrick (Glasgow) (Green) Aitken, Bill (Glasgow) (Con) Henry, Hugh (Paisley South) (Lab) Brocklebank, Mr Ted (Mid Scotland and Fife) (Con) Home Robertson, John (East Lothian) (Lab) Byrne, Ms Rosemary (South of Scotland) (Sol) Hughes, Janis (Glasgow Rutherglen) (Lab) Canavan, Dennis (Falkirk West) (Ind) Jackson, Dr Sylvia (Stirling) (Lab) Crawford, Bruce (Mid Scotland and Fife) (SNP) Jackson, Gordon (Glasgow Govan) (Lab) Cunningham, Roseanna (Perth) (SNP) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) Davidson, Mr David (North East Scotland) (Con) (Lab) Douglas-Hamilton, Lord James (Lothians) (Con) Kerr, Mr Andy (East Kilbride) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Lamont, Johann (Glasgow Pollok) (Lab) Fabiani, Linda (Central Scotland) (SNP) Livingstone, Marilyn (Kirkcaldy) (Lab) Fergusson, Alex (Galloway and Upper Nithsdale) (Con) Lyon, George (Argyll and Bute) (LD) Fraser, Murdo (Mid Scotland and Fife) (Con) Macdonald, Lewis (Aberdeen Central) (Lab) Gibson, Rob (Highlands and Islands) (SNP) Macintosh, Mr Kenneth (Eastwood) (Lab) Gillon, Karen (Clydesdale) (Lab) Maclean, Kate (Dundee West) (Lab) Grahame, Christine (South of Scotland) (SNP) Macmillan, Maureen (Highlands and Islands) (Lab) Hyslop, Fiona (Lothians) (SNP) Martin, Paul (Glasgow Springburn) (Lab) Ingram, Mr Adam (South of Scotland) (SNP)

†660 28997 2 NOVEMBER 2006 28998

Lochhead, Richard (Moray) (SNP) Munro, John Farquhar (Ross, Skye and Inverness West) MacAskill, Mr Kenny (Lothians) (SNP) (LD) Marwick, Tricia (Mid Scotland and Fife) (SNP) Murray, Dr Elaine (Dumfries) (Lab) Mather, Jim (Highlands and Islands) (SNP) Oldfather, Irene (Cunninghame South) (Lab) Matheson, Michael (Central Scotland) (SNP) Peacock, Peter (Highlands and Islands) (Lab) Maxwell, Mr Stewart (West of Scotland) (SNP) Peattie, Cathy (Falkirk East) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Pringle, Mike (Edinburgh South) (LD) McGrigor, Mr Jamie (Highlands and Islands) (Con) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Milne, Mrs Nanette (North East Scotland) (Con) Radcliffe, Nora (Gordon) (LD) Mitchell, Margaret (Central Scotland) (Con) Robson, Euan (Roxburgh and Berwickshire) (LD) Morgan, Alasdair (South of Scotland) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Neil, Alex (Central Scotland) (SNP) Scott, Eleanor (Highlands and Islands) (Green) Petrie, Dave (Highlands and Islands) (Con) Scott, Tavish (Shetland) (LD) Robison, Shona (Dundee East) (SNP) Smith, Elaine (Coatbridge and Chryston) (Lab) Scott, John (Ayr) (Con) Smith, Iain (North East Fife) (LD) Stevenson, Stewart (Banff and Buchan) (SNP) Smith, Margaret (Edinburgh West) (LD) Swinney, Mr John (North Tayside) (SNP) Stephen, Nicol (Aberdeen South) (LD) Watt, Ms Maureen (North East Scotland) (SNP) Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) Welsh, Mr Andrew (Angus) (SNP) (LD) White, Ms Sandra (Glasgow) (SNP) Wallace, Mr Jim (Orkney) (LD) Whitefield, Karen (Airdrie and Shotts) (Lab) AGAINST Wilson, Allan (Cunninghame North) (Lab) Alexander, Ms Wendy (Paisley North) (Lab) Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) The Deputy Presiding Officer: The result of Baillie, Jackie (Dumbarton) (Lab) the division is: For 38, Against 69, Abstentions 0. Baird, Shiona (North East Scotland) (Green) Baker, Richard (North East Scotland) (Lab) Amendment 157 disagreed to. Ballance, Chris (South of Scotland) (Green) Barrie, Scott (Dunfermline West) (Lab) Amendments 158 to 163 moved—[Robert Boyack, Sarah (Edinburgh Central) (Lab) Brown]—and agreed to. Brankin, Rhona (Midlothian) (Lab) Brown, Robert (Glasgow) (LD) Schedule 2 Butler, Bill (Glasgow Anniesland) (Lab) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) INQUIRIES: SUPPLEMENTARY PROVISION AS TO EVIDENCE Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Ms Margaret (Glasgow Baillieston) (Lab) Amendments 164 to 174 moved—[Robert Deacon, Susan (Edinburgh East and Musselburgh) (Lab) Brown]—and agreed to. Eadie, Helen (Dunfermline East) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) The Deputy Presiding Officer: That ends Finnie, Ross (West of Scotland) (LD) consideration of amendments. Fox, Colin (Lothians) (SSP) Glen, Marlyn (North East Scotland) (Lab) Godman, Trish (West Renfrewshire) (Lab) Gordon, Mr Charlie (Glasgow Cathcart) (Lab) Gorrie, Donald (Central Scotland) (LD) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Home Robertson, John (East Lothian) (Lab) Hughes, Janis (Glasgow Rutherglen) (Lab) Jackson, Dr Sylvia (Stirling) (Lab) Jackson, Gordon (Glasgow Govan) (Lab) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kerr, Mr Andy (East Kilbride) (Lab) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Lyon, George (Argyll and Bute) (LD) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Mr Kenneth (Eastwood) (Lab) Maclean, Kate (Dundee West) (Lab) Macmillan, Maureen (Highlands and Islands) (Lab) Martin, Paul (Glasgow Springburn) (Lab) May, Christine (Central Fife) (Lab) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Mr Tom (Hamilton South) (Lab) McMahon, Michael (Hamilton North and Bellshill) (Lab) McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Morrison, Mr Alasdair (Western Isles) (Lab) Muldoon, Bristow (Livingston) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab)

†661 28999 2 NOVEMBER 2006 29000

Scottish Commission for Human That is the challenge that we face, and it is why the bill has been produced. Rights Bill The Executive started to consider establishing a The Deputy Presiding Officer (Murray Tosh): human rights commission for Scotland in 2000. The next item of business is a debate on motion When the Parliament first held a debate on human S2M-4920, in the name of Robert Brown, that the rights, in that year, the Conservatives and the Parliament agrees that the Scottish Commission Scottish National Party joined in calls for the for Human Rights Bill be passed. I advise establishment of such a body—a body that was members that we are behind the clock and I am pretty much in the format that is currently being not sure that I will be able to call any member in presented to Parliament. If members do not the open debate; however, I will do my best. believe that, they should read the Official Report of that debate, as I have done since Roseanna Cunningham’s earlier intervention. 17:21 Mr John Swinney (North Tayside) (SNP): The Deputy Minister for Education and Does the minister not accept that there have been Young People (Robert Brown): Human rights a number of material changes in the architecture are at the heart of any civilised society, but the and the supervision of governance in Scotland in European convention on human rights is, rightly, the years since that debate and that perhaps, on written into the very fabric of the legislation that occasions, political parties might be better established the Scottish Parliament. As we come respected if they changed their minds when the to the end of the legislative process, I ask world around them changed? members to reflect not just on the nuts-and-bolts issues of management, budget, office and Robert Brown: I am pleased to accept that accountability that have been rightly prominent in recognition of the fact that the SNP has changed the debate—perhaps too prominent—but on the its mind on the matter. That was not something purpose of the Scottish human rights commission. that we got from Roseanna Cunningham earlier. The point is that there has been a change of view The Scottish human rights commission is about by some people on the matter. embedding high standards of human rights and public ethics into the policy and practice of public It is also odd how Margaret Mitchell has been authorities—councils, quangos, bodies that deliver keen to airbrush out of her version of history the public services and government. Human rights strong statements that were made at that time by considerations have already changed many things David McLetchie, Lord James Douglas-Hamilton that we took for granted in our courts system and and others. our general democracy, including temporary Margaret Mitchell (Central Scotland) (Con): sheriffs; public appointment procedures; the need Will the minister take an intervention? for the prosecution to explain and justify some of its decisions; the treatment of mental health Robert Brown: No. I have already taken an detainees; the position of victims; and many intervention, and I think that we know what the others. Sometimes, those changes have been member would say. made following review by Government; I have been disappointed by the apparent lack of sometimes, they have been made following the emphasis that the major Opposition party, the representations of committees; and, sometimes, Scottish National Party—which, curiously, they have been made as a result of legal action. describes itself as a modern social democratic I will make two central points. First, changes that party—puts on promoting human rights. are forced by legal or other action are almost Margaret Mitchell: Will the minister take an always more expensive than changes that are intervention? planned in advance. Secondly, as MSPs we can pass perfect laws, but 95 per cent of the challenge The Deputy Presiding Officer: The minister is is in their implementation on the ground through not going to give way. the practice and standards that are achieved by Robert Brown: Since 2000, we have held two local government and others in carrying through public consultations. The responses to those the legislative intent. Many of the points that were consultations showed widespread support for the made in the previous debate echoed that. We proposal to establish a commission. That support know, from the recent Amnesty International was reiterated during the bill’s progress. Our Scotland report, as well as from a host of other proposals are widely supported across the reports by the National Audit Office and others, spectrum of civic society in Scotland. that there is a widespread lack of focus by Scottish public authorities on human rights that still require I see Fergus Ewing saying something. Does he to be recognised and complied with in practice. want to intervene?

†662 29001 2 NOVEMBER 2006 29002

Margaret Mitchell: Will the minister take an individual citizens, and establishing more soundly intervention from me? the rights of people who are often left behind and whose human rights are not well protected. The Robert Brown: No. I know what Margaret amendment at stage 2 to the commission’s Mitchell will say. [Interruption.] general duty to focus on the human rights of those The Deputy Presiding Officer: Order. whose rights are not otherwise sufficiently promoted was important. Robert Brown: I thank the Justice 1 Committee for its hard work in thoroughly considering the bill The commission’s work programme is for it to and everyone else who has contributed by giving develop, but it might include supporting vulnerable evidence or by other means. older people, young people in care homes, migrant workers, people in deprived or rural During the process, we have listened to what communities or people with limited financial rights has been said and made significant changes to or powers. That is what the SCHR will be about. our proposals, particularly to the architecture and By working to achieve a society in which environment within which the commission will everyone’s human rights are respected and in operate. The Justice 1 Committee’s scrutiny was which public bodies are the leaders in good rigorous—occasionally even torrid—but that practice, the SCHR will help us to achieve the committee did its job with diligence and the bill has modern, confident and inclusive Scotland that we benefited immeasurably from its work, as bills all want. have often done. I move, The changes to our proposals include the requirement for the Scottish commission for That the Parliament agrees that the Scottish Commission human rights to publish and consult on a strategic for Human Rights Bill be passed. plan; the establishment of a commission instead of a single commissioner; the duty to consider 17:28 sharing offices and services with other bodies, Stewart Stevenson (Banff and Buchan) such as the forthcoming Great Britain commission (SNP): Des McNulty’s amendment to the for equality and human rights; and the explicit Executive’s motion was not selected for debate— requirement for the commission’s budget to be members can read it in the Business Bulletin. That approved by the Scottish Parliamentary Corporate amendment sought to restrict the amount of Body. Those arrangements go much further than money for the Scottish commission for human the arrangements for existing parliamentary rights in relation to functional costs. I do not want commissioners and ombudsmen. It was proper to to worry about whether we should be debating that make those changes, and the process has, by amendment, but I hope that if the bill is passed at debate, tested arrangements that will be extended 6 o’clock, we will find a way of controlling the to the earlier bodies in due course. balance of the commission’s expenditure. Accepting Mary Mulligan’s amendment 97 Following all the work that has been done and means that the corporate body will be given the the considerable period in which the proposal has flexibility to make advance arrangements in been considered, we are left with a fundamental relation to the commission’s office—that includes dichotomy that I cannot solve. The bill is about the the possibility of co-locating it with the Great promotion of human rights within public Britain commission—and to take the necessary institutions, but Scottish National Party members time to develop appropriate and cost-effective want a bill that protects the individual human rights administrative arrangements to support the of the citizens of Scotland. That is a very different commission’s functions. thing. Human rights can be compromised by, for Those issues are important. However, in example, commercial companies. On other considering them, we must not lose sight of what occasions, human rights can actually be promoted the SCHR will be for and what it will be expected and supported by commercial companies. For to do. Individuals can get the full benefits of example, one of our major banks flouts the law human rights only if they know what those rights that requires people who open bank accounts to are. Similarly, public authorities must know what have an address. The bank opens accounts for those human rights are so that they can respect the sellers of The Big Issue, who are, by definition, them and not allow misunderstandings about them homeless. My point is that human rights issues go to get in the way of delivering effective services. far beyond simply the public bodies, and the Experience has shown that making services effects can be positive or negative. human rights compliant brings wider benefits as a Individuals should be at the heart of our result of improved quality. To put things in another concerns in relation to human rights, but this bill way, the issue is raising public satisfaction with simply does not focus on individuals. Public public services, saving resources by doing things institutions already have duties in relation to in a better and unchallengeable way that respects †663 29003 2 NOVEMBER 2006 29004

human rights. The case has been made that they Mike Pringle (Edinburgh South) (LD): Will the are not properly exercising those duties, and we member take an intervention? have heard a number of Government speakers Margaret Mitchell: I am sorry, but I do not have criticising the performance of public bodies—be time. they local authorities, parts of the health service, or whatever. I cannot pretend to be other than hugely disappointed that the function that the bill will We are in a curious position. We are seeking to confer on a commission will not be given to the create a bill whose purpose is to compensate for Scottish public services ombudsman. In failing to the human rights deficiencies of public bodies; do that, we have lost an opportunity to however, the overall human rights performance of complement the SPSO’s current role, which is to those public bodies is probably better than that of investigate maladministration within public private bodies and companies, and that of public authorities and to merge that role with an companies and individuals. We should instead be awareness-raising and promotional role. I firmly focusing on the human rights of individuals. If we believe that giving the new function to the SPSO had put the people of Scotland at the heart of the would have been a much more effective way of bill, SNP members would have been able to ensuring that the function was carried out, as the support the bill at 6 o’clock. However, as it stands, SPSO, by virtue of her current role in dealing with the bill is not worth salvaging. It will simply create complaints, is already well aware of where there is a post for someone who will book advertising a need to promote and raise awareness of human space and go into public authorities of one sort or rights in public authorities and bodies. In addition, another around Scotland to try to persuade them value for money would have been achieved and to up their game. the savings that would have been made from the Patrick Harvie (Glasgow) (Green): Does the commission’s proposed £1 million budget could member acknowledge that, out there in civic have been ploughed into the voluntary sector to Scotland, people across the entire human rights allow organisations with expertise and experience field support the creation of the commission? Even in promoting and fighting for the human rights of though they share some of Mr Stevenson’s the various vulnerable people whom they concerns about the bill’s limitations, they see that represent to take up individual cases, which the it has value. commission will have no power to do. Stewart Stevenson: In so far as they have The Executive has tinkered at the edges by contacted me—quite a number have done so—my making suggestions that it estimates will reduce constituents have entirely different concerns from the costs of establishing the commission— those who are employed in the business and who suggestions about advertising for new members, have campaigned for the commission. I say that pensions, social security provision, allowances as someone who has been a member of Amnesty and salaries—but the fact remains that the £1 International. Through inadvertence, I do not million could have been far better used to promote happen to be a member at the moment, but that is and protect human rights. not because I do not support the work that I will touch on two amendments that were Amnesty International does. I do support it, and agreed to at stage 2. The first is the amendment other human rights bodies have had my support that removed the requirement to give notice before as well. inspecting a detention centre. That was clearly There is a fundamental difficulty about putting sensible. Conversely, the other amendment, to on the statute book a bill that does not deliver which the minister referred, created a provision what is on the title of the tin. We have to go back that would in effect prioritise the promotion of and think again. I and my colleagues do not some human rights. Any promotion should take expect to support the bill at 6 o’clock. place case by case and on its merits, as it is to be hoped that the human rights of every group in society are equally important. Instead, the 17:33 amendment sends the unacceptable message that Margaret Mitchell (Central Scotland) (Con): I all human rights are equal, but that some are more begin by thanking the clerks for their patience and equal than others. How depressing it is that the bill perseverance in coping with all the proposed suggests that shades of “Animal Farm” are alive alterations to this difficult bill. The fact that the and kicking in Scotland’s devolved Government. Justice 1 Committee rejected the general Not surprisingly, we will not support the bill. principles of the bill at stage 1 indicates the concerns over the bill’s provisions. The bill has taken over a year to go through the parliamentary 17:36 process, from the Justice 1 Committee to its stage Marlyn Glen (North East Scotland) (Lab): I am 3 hurdle today. pleased to have the opportunity to speak in the

†664 29005 2 NOVEMBER 2006 29006 debate, as I am and have been from the beginning and human rights. It is important that we supportive of the bill, which establishes the remember the bigger picture. This week it was Scottish commission for human rights. Like informative to hear the views of Welsh Assembly Margaret Mitchell, I thank the Justice 1 members who met the Equal Opportunities Committee’s clerks for supporting us through the Committee. They are looking forward to the bill process at the same time as doing all the other establishment of the CEHR and are pushing for work that the committee has taken on. the Welsh commissioner to be appointed as soon as possible. We should put our energies into The new commission for equality and human ensuring that the Scottish commissioner is among rights was established under UK legislation that the first tranche of appointments that are made was deliberately drafted to leave a gap in the through the public appointment process. The promotion of human rights in relation to devolved Scottish human rights commission must be set up matters. The SCHR will fill that gap, to reflect our at the same time, so that we can have a different legal framework in Scotland. comprehensive service that covers both devolved The commission’s function will be to promote and reserved issues. awareness and understanding of and respect for I look forward to the debate in Scotland being human rights. The SCHR will be a promotional refocused to consider broader issues of human office, but individual complaints might prompt it to rights. I support the bill. conduct an inquiry into an issue. The courts will remain the place where any decision is made on The Presiding Officer (Mr George Reid): I whether human rights have been breached. regret the fact that, despite the extended time for consideration of the bill, there is no time for open We in Scotland are lucky enough to enjoy much debate. We must conclude by 18:00, so we move more than the basic level of human rights, but a straight to closing speeches. body such as the commission is still needed here. In our consideration of the detail of the bill, we should not forget that. We need a commission to 17:40 assist public authorities to comply with their Mike Pringle (Edinburgh South) (LD): I, too, obligations under the Human Rights Act 1998; to express my thanks to the clerks for the great job promote a human rights culture so that people that they have done on this difficult bill. I am know their rights and responsibilities; to monitor extremely supportive of the bill, as are all my compliance with current law and practice; and to Liberal Democrat colleagues. It fulfils a help voluntary organisations and public authorities commitment that we gave in the 2003 election to assist their clients to assert their rights more campaign—that is why it was in the partnership effectively. agreement. The recent report “Delivering Human Rights in I will set the record straight for Margaret Mitchell. Scotland: A report on Scottish Public Authorities” The Justice 1 Committee did not reject the general by Amnesty International Scotland pointed out the principles of the bill. At the end of the committee’s need for such assistance. Jim Wallace quoted that stage 1 report, three options reflect the views of report and the deputy minister mentioned it. I different members of the committee. I favoured mention the report again because it contains some option 3, which was that we supported the general positive points. It provides examples of good principles of the bill. practice, including that of Angus Council, Renfrewshire Council, South Lanarkshire Council The bill has not had the easiest passage through and Tayside police. Tayside police have a detailed stages 1 and 2. I pay tribute to the minister, who policy document that outlines the four principles of guided the bill through the process. He was willing legality, necessity, proportionality and at all times to discuss any aspects of the bill with transparency in police procedures. A Scottish committee members—formally or informally, and commission will encourage all bodies to follow collectively or individually. That offer was on the such good practice. table throughout the passage of the bill. I restate my support for the review of all the Human rights are the basis of social justice. commissions and commissioners in Scotland that When they are breached we all suffer, but the poor was established recently. The bill recognises that and the powerless suffer most. Human rights no overlaps should occur—we have discussed should be the drivers for public services that we all that today—but we need to re-examine the remits, want to develop and improve, such as the locations and finances of all the bodies. I look protection of children, empowering adults with forward to its being done quickly. incapacities, raising standards in care services and much more. The aim must be to ensure that While we have been pausing to consider the bill, the right balance is struck between the rights of a great deal of work has been going on to individuals and the interests of society. That is why establish the Great Britain commission for equality we need the bill.

†665 29007 2 NOVEMBER 2006 29008

The bill will establish a Scottish commission for McNulty, I do not think that I am exaggerating human rights, which will be responsible for all the when I say that if they had been left to their own basic human rights that I have just mentioned. I devices, this bill would not have been passed— believe that it is vital that we have here in Scotland and, indeed, nor should it be passed. Quite a person who is appointed specifically to address frankly, it is unnecessary. In a Parliament and with the human rights of Scots in Scotland. The an Executive that have been party to setting up suggestion that the role could have been taken by more tsars than there were in the Romanov the Scottish public services ombudsman was a dynasty, this commissioner is surely a tsar too far. serious attempt to downgrade the importance of There cannot be any members in the chamber this very important office. who are not deeply concerned about either I very much welcome Mary Mulligan’s excellent collective or individual human rights. Although I amendments. We all agreed that the commission’s have fallen out with the Minister for Justice over office should be located with the new body that the the years, even I do not think that she is into Westminster Government plans to set up. That will torturing people, either personally or by proxy. I do deliver considerable operational and cost benefits. not know, though; that is probably not what her The UK body will be located in Glasgow, and it is husband would tell me. sensible that the Scottish commission should also The human rights situation in Scotland might not be located there. That will give the added be perfect, but the current systems can deal advantage that the general public and comfortably with human rights cases. After all, organisations will have to go to only one place to what is the purpose of parliamentary committees raise a human rights issue, whether or not that and individual MSPs if not to do everything issue is devolved; they will be directed to the right possible to provide assistance on human rights? office, with no inconvenience. I understand that Surely not one of us would refuse to come to the the Scottish Executive has maintained close assistance of individuals or bodies who we felt had contact with UK officials on the issue, and the had their human rights seriously prejudiced. proposal is a very sensible way forward. Patrick Harvie: Does Mr Aitken seriously The commission’s general duty will be dismiss the research that shows that two thirds of “to promote awareness and understanding of, and respect public bodies in Scotland admit either that they do for, human rights” not understand their responsibilities under human in relation to devolved matters. It will be able to rights law or that they have not yet taken any conduct inquiries and to intervene in civil court steps to meet them? If he accepts that finding, proceedings. It will also have the ability to request does he not also accept that there is a place for a information in support of inquiries and the right of body with a specific human rights focus to promote entry to places of detention. As Margaret Mitchell understanding of such matters? said, a sensible amendment at stage 2 clarified Bill Aitken: No. There is no place for this body, that point. because, as members have pointed out time and The new commission will address the increased again, its functions could either be carried out need for advice and help in the area of human within this parliamentary structure or, as Margaret rights. I see the role as a reactive one and as one Mitchell suggested, be absorbed by the Scottish that will develop. I agree with Patrick Harvie, in public services ombudsman. That is a fact of life. particular, that as time passes the commission’s Scotland has a very good human rights record. responsibilities will increase and it will get more The only people outside the Parliament who are in teeth. I hope that that is the case and I will favour of this legislation are the human rights welcome it when it happens. I have much pleasure lobby and those who are acting out of self-interest. in supporting the bill. Another £1 million that could be used better elsewhere is going down the drain. 17:44 It is really not good enough for Mr Pringle to Bill Aitken (Glasgow) (Con): This has not been suggest in an intervention on Margaret Mitchell a good day for Liberal ministers. This morning, we that the Justice 1 Committee did not discard the saw the hapless George Lyon being hung out to bill. It simply could not reach agreement on it; dry by his Labour master and filleted by Mr indeed, it was split three ways on the matter, with Swinney and Mr Brownlee. This afternoon, Mr no majority view on any of the proposals. Brown must feel that the support that he has Certainly, the view that Mr Pringle has expressed received from Labour members has been, to say again today was decidedly in the minority—which the least, tepid. In fact, to call it lukewarm would is hardly a shining endorsement of the procedures. be a gross exaggeration. Once again, the Liberal tail is wagging the Having listened to the contributions of Labour Labour dog. This legislation should not go on the members such as Pauline McNeill and Des statute book. †666 29009 2 NOVEMBER 2006 29010

17:48 the intervening period and that something different Mr John Swinney (North Tayside) (SNP): We needs to be done. should pass legislation in this Parliament only if We are continuing on these tramlines because there is an unanswerable case for doing so and if we set off on them and we will deliver the human it reflects a real need to tackle a significant rights commission regardless of whether Scotland problem in our society. Much has been made of needs it. A million pounds is going down the pan. reports that numerous local authorities and public [Interruption.] I cannot hear what the Deputy First bodies are not honouring their human rights Minister is shouting from a sedentary position, but obligations. However, every piece of legislation if he wants to intervene I would be happy to hear that the Parliament enacts must be compatible from him. I see that he has gone back to signing with the Human Rights Act 1998. If public bodies his letters. and statutory authorities are not fulfilling their statutory duties, I, as an MSP, want to know why I turn to the second point on which the deputy those who are responsible for supervising them minister has failed to make a convincing are not cracking the whip. Why is the Scottish argument. When he was challenged about what Executive giving money to public authorities that the commission would do, he cited the example of are not fulfilling their statutory duty? Why is that a human rights concern in the state hospital in not part of the carpeting of the chief executives of Carstairs and argued that it was a case that the those organisations or the chief executives of local human rights commission could resolve. He authorities? The problem is that nobody in this inadvertently forgot to tell the Parliament that the country gets carpeted for failure to deliver on their issue has been resolved before the human rights statutory duties. Everybody just covers up for the commissioner has been established. That raises a failure to deliver on various areas of policy. serious question about whether such a commission is required now that this devolved One of my biggest concerns about the bill is that Scotland has 16 parliamentary committees, a there is not an area of activity in which the role parliamentary chamber and so many ombudsmen could not be performed by the Government or by that I cannot even remember how many there are. public authorities delivering on their functions; any All those bodies can scrutinise the policy areas remaining outstanding questions could be and tackle the problems that exist in our society. addressed by reconfiguring the congested architecture of governance that we in this The arguments that the Government has made Parliament have created. today have been very poor. I pay tribute to the members of the partnership Administration parties The lines of argument that the deputy minister who have had the courage to challenge some of has used at committee and in the chamber to try its arguments with well-thought-out and to persuade the Parliament to support the bill have considered amendments. I hope that Parliament been appalling in two respects. First, he has will agree as one to review the architecture of the derided the fact that my party has a different ombudsman structure in Scotland. We have perspective today about the need for a human created a congested environment and we must rights commission from what we had in 2000. resolve the issue sooner rather than later. However, we take a different approach because the architecture of government in Scotland has changed in the intervening six years. There are 17:53 more commissions and ombudsmen than there The Minister for Justice (Cathy Jamieson): were back in 2000 when we made the comments When I look back to 2000—at that stage I was a that Mr Wallace read out earlier. If we did not back bencher listening to the debate that took reflect on that and change our position and place—I do not think that I could have imagined attitude because the situation has changed, but that I would be standing here today without there instead steamrollered on regardless, what would being some consensus across the chamber. There the public think of what we are doing in this place? certainly seemed to be a degree of consensus at The decision is being taken today not because that stage, among the SNP and the Tories as well the Government won the argument. The as among Labour and the Liberal Democrats, in Government did not win in the face of Des favour of the general principles of a human rights McNulty’s arguments, Pauline McNeill’s commission. arguments or some of the other arguments that We have heard arguments about governance, have been made. The bill will go through because architecture and structure. However, I cannot get of the commitment that was given three years ago my head round Mr Swinney’s saying that times by the two parties in the partnership agreement; have to change and that we must move on and nobody—I concede that there are some consider costs when, at the same time, the SNP exceptions on the back benches—is prepared to has not been honest with the electorate about the reflect on the fact that the world has changed in

†667 29011 2 NOVEMBER 2006 29012

true costs of independence. The SNP will have to disadvantage. The bill is not an academic face that issue. exercise. It is not just to do with an intellectual aspiration to promote human rights; it must make There has been a great deal of discussion on a difference to ordinary citizens in ordinary houses the bill and members of my party have raised in ordinary streets in Scotland. Those citizens relevant and important points in the Finance need to know that human rights matter and that Committee and the Justice 1 Committee and we care enough about their rights to take action to during today’s proceedings. I thank them for their promote and protect them. contributions. Because of the scrutiny that has been given to the bill, we have listened and made The bill places an onerous responsibility on the changes, as we said during the debate, to ensure Scottish Parliamentary Corporate Body, as we that we get the best possible value for the public heard during this afternoon’s proceedings. That is purse. Indeed, we are open to considering how right and proper. The SPCB will have to take best to improve accountability in the future. decisions about the commission’s location and the scrutiny of the commission’s budget and it will I come from a background of making practical have to ensure that the commission acts in arguments for improvements to human rights. I accordance with the will of the Parliament. We have argued for the right to a decent house, the heard the will of the Parliament clearly today and I right to a minimum wage, the right to an education would be surprised if a future parliamentary for our children, the right to health care, and the corporation or commissioner did not follow it. right of older people to have warm homes. In particular, in my work for what I would describe as I thank everyone who participated in the debate. a human rights organisation, I argued for the right I know that some people are fundamentally of young people in care to be properly looked opposed to the bill and have found the issue after. Something that stuck with me from all my difficult and challenging. We have faced a years at Who Cares? Scotland was the comment challenging process as we tried to achieve the of a young person, who said, “There is no point in best possible governance and do what is having rights if you don’t know you have them and necessary. I hope that I can leave members with you don’t know who to go to if you feel they aren’t the thought that the commission has to make a being properly recognised.” That comment goes to difference to ordinary people. It is our the heart of the need to promote human rights in responsibility to ensure that the will of the Scotland. We need to be constantly vigilant to Parliament is carried out. I ask members to ensure that every public body ensures that support the bill. everyone’s rights are protected. Stewart Stevenson: First, the minister talked about the need for an individual to have somewhere to turn to. The bill will not allow individuals to turn to the proposed new commission. How does she respond to that? Secondly, she referred to the right to a warm home. That is an issue for the commercial fuel supply companies that cause problems, which is outside the scope of the bill. The minister has condemned the bill in her own speech. Cathy Jamieson: I have in no way condemned the bill. I was describing my support for the Executive’s work in a range of areas to deliver social justice for ordinary people in Scotland. Social justice should be the focus of the Scottish commission for human rights. The member said that individuals would have nowhere to turn for assistance, but the commission will be able to flag up issues, provide guidance and information and direct people to the correct place to receive help, whether that is the court or another organisation. We tightened up the bill to ensure that there will be no unnecessary duplication and we made it clear that the commission’s work will not replace the work that should go on in the Parliament. I talked about the people who suffer the most

†668 29023 2 NOVEMBER 2006 29024

Glen, Marlyn (North East Scotland) (Lab) Godman, Trish (West Renfrewshire) (Lab) Gordon, Mr Charlie (Glasgow Cathcart) (Lab) Gorrie, Donald (Central Scotland) (LD) Henry, Hugh (Paisley South) (Lab) Home Robertson, John (East Lothian) (Lab) Hughes, Janis (Glasgow Rutherglen) (Lab) Jackson, Dr Sylvia (Stirling) (Lab) Jackson, Gordon (Glasgow Govan) (Lab) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kerr, Mr Andy (East Kilbride) (Lab) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Lyon, George (Argyll and Bute) (LD) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Mr Kenneth (Eastwood) (Lab) Maclean, Kate (Dundee West) (Lab) Macmillan, Maureen (Highlands and Islands) (Lab) Martin, Paul (Glasgow Springburn) (Lab) May, Christine (Central Fife) (Lab) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Mr Tom (Hamilton South) (Lab) McMahon, Michael (Hamilton North and Bellshill) (Lab) McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) Morrison, Mr Alasdair (Western Isles) (Lab) Muldoon, Bristow (Livingston) (Lab) Mulligan, Mrs Mary (Linlithgow) (Lab) Munro, John Farquhar (Ross, Skye and Inverness West) (LD) Murray, Dr Elaine (Dumfries) (Lab) Oldfather, Irene (Cunninghame South) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Radcliffe, Nora (Gordon) (LD) Robson, Euan (Roxburgh and Berwickshire) (LD) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Scott, Tavish (Shetland) (LD) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Stephen, Nicol (Aberdeen South) (LD)

Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD) Wallace, Mr Jim (Orkney) (LD) Whitefield, Karen (Airdrie and Shotts) (Lab) Wilson, Allan (Cunninghame North) (Lab) The Presiding Officer: The seventh question is, that motion S2M-4920, in the name of Robert Brown, that the Parliament agrees that the Scottish Commission for Human Rights Bill be passed, be agreed to. Are we agreed? Members: No. The Presiding Officer: There will be a division.

FOR Alexander, Ms Wendy (Paisley North) (Lab) Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD) Baillie, Jackie (Dumbarton) (Lab) Baird, Shiona (North East Scotland) (Green) Baker, Richard (North East Scotland) (Lab)

†669 29025 2 NOVEMBER 2006 29026

Ballance, Chris (South of Scotland) (Green) AGAINST Ballard, Mark (Lothians) (Green) Adam, Brian (Aberdeen North) (SNP) Barrie, Scott (Dunfermline West) (Lab) Aitken, Bill (Glasgow) (Con) Boyack, Sarah (Edinburgh Central) (Lab) Brocklebank, Mr Ted (Mid Scotland and Fife) (Con) Brankin, Rhona (Midlothian) (Lab) Brownlee, Derek (South of Scotland) (Con) Brown, Robert (Glasgow) (LD) Crawford, Bruce (Mid Scotland and Fife) (SNP) Butler, Bill (Glasgow Anniesland) (Lab) Cunningham, Roseanna (Perth) (SNP) Byrne, Ms Rosemary (South of Scotland) (Sol) Davidson, Mr David (North East Scotland) (Con) Canavan, Dennis (Falkirk West) (Ind) Douglas-Hamilton, Lord James (Lothians) (Con) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Fabiani, Linda (Central Scotland) (SNP) Curran, Frances (West of Scotland) (SSP) Fergusson, Alex (Galloway and Upper Nithsdale) (Con) Curran, Ms Margaret (Glasgow Baillieston) (Lab) Fraser, Murdo (Mid Scotland and Fife) (Con) Deacon, Susan (Edinburgh East and Musselburgh) (Lab) Gibson, Rob (Highlands and Islands) (SNP) Eadie, Helen (Dunfermline East) (Lab) Goldie, Miss Annabel (West of Scotland) (Con) Ferguson, Patricia (Glasgow Maryhill) (Lab) Grahame, Christine (South of Scotland) (SNP) Finnie, Ross (West of Scotland) (LD) Hyslop, Fiona (Lothians) (SNP) Fox, Colin (Lothians) (SSP) Ingram, Mr Adam (South of Scotland) (SNP) Gillon, Karen (Clydesdale) (Lab) Johnstone, Alex (North East Scotland) (Con) Glen, Marlyn (North East Scotland) (Lab) Lochhead, Richard (Moray) (SNP) Godman, Trish (West Renfrewshire) (Lab) MacAskill, Mr Kenny (Lothians) (SNP) Gordon, Mr Charlie (Glasgow Cathcart) (Lab) Marwick, Tricia (Mid Scotland and Fife) (SNP) Gorrie, Donald (Central Scotland) (LD) Mather, Jim (Highlands and Islands) (SNP) Harper, Robin (Lothians) (Green) Matheson, Michael (Central Scotland) (SNP) Harvie, Patrick (Glasgow) (Green) Maxwell, Mr Stewart (West of Scotland) (SNP) Henry, Hugh (Paisley South) (Lab) McFee, Mr Bruce (West of Scotland) (SNP) Home Robertson, John (East Lothian) (Lab) McGrigor, Mr Jamie (Highlands and Islands) (Con) Hughes, Janis (Glasgow Rutherglen) (Lab) McLetchie, David (Edinburgh Pentlands) (Con) Jackson, Dr Sylvia (Stirling) (Lab) Milne, Mrs Nanette (North East Scotland) (Con) Jackson, Gordon (Glasgow Govan) (Lab) Mitchell, Margaret (Central Scotland) (Con) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) Monteith, Mr Brian (Mid Scotland and Fife) (Ind) (Lab) Neil, Alex (Central Scotland) (SNP) Kerr, Mr Andy (East Kilbride) (Lab) Petrie, Dave (Highlands and Islands) (Con) Lamont, Johann (Glasgow Pollok) (Lab) Robison, Shona (Dundee East) (SNP) Livingstone, Marilyn (Kirkcaldy) (Lab) Scott, John (Ayr) (Con) Lyon, George (Argyll and Bute) (LD) Stevenson, Stewart (Banff and Buchan) (SNP) Macdonald, Lewis (Aberdeen Central) (Lab) Sturgeon, Nicola (Glasgow) (SNP) Macintosh, Mr Kenneth (Eastwood) (Lab) Swinney, Mr John (North Tayside) (SNP) Maclean, Kate (Dundee West) (Lab) Tosh, Murray (West of Scotland) (Con) Macmillan, Maureen (Highlands and Islands) (Lab) Watt, Ms Maureen (North East Scotland) (SNP) Martin, Paul (Glasgow Springburn) (Lab) Welsh, Mr Andrew (Angus) (SNP) May, Christine (Central Fife) (Lab) White, Ms Sandra (Glasgow) (SNP) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McCabe, Mr Tom (Hamilton South) (Lab) The Presiding Officer: The result of the division McMahon, Michael (Hamilton North and Bellshill) (Lab) is: For 74, Against 41, Abstentions 0. McNeil, Mr Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) Motion agreed to. Morrison, Mr Alasdair (Western Isles) (Lab) Muldoon, Bristow (Livingston) (Lab) That the Parliament agrees that the Scottish Commission Mulligan, Mrs Mary (Linlithgow) (Lab) for Human Rights Bill be passed. Munro, John Farquhar (Ross, Skye and Inverness West) (LD) Murray, Dr Elaine (Dumfries) (Lab) Oldfather, Irene (Cunninghame South) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Radcliffe, Nora (Gordon) (LD) Robson, Euan (Roxburgh and Berwickshire) (LD) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Scott, Eleanor (Highlands and Islands) (Green) Scott, Tavish (Shetland) (LD) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Stephen, Nicol (Aberdeen South) (LD) Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD) Wallace, Mr Jim (Orkney) (LD) Whitefield, Karen (Airdrie and Shotts) (Lab) Wilson, Allan (Cunninghame North) (Lab)

†670 Scottish Commission for Human Rights Bill [AS PASSED]

CONTENTS

Section

Scottish Commission for Human Rights 1 Scottish Commission for Human Rights

General functions 2 General duty to promote human rights 4 Information, guidance, education etc. 4A Monitoring of law, policies and practices 14 Power to co-operate etc. with others 14A No power to assist in claims or legal proceedings

Strategic plans 4B Strategic plans

Inquiries 5 Power to conduct inquiries 6 Restrictions as to scope of inquiry 7 Evidence 8 Places of detention: powers of entry, inspection and interview 9 Report of inquiry 10 Confidentiality of information

Intervention in civil proceedings 11 Power to intervene

Reports 12 Annual report 13 Publication of reports

General 15 Protection from actions for defamation 16 Giving of notice 17 Meaning of “Scottish public authority” 18 Interpretation 18A Preparation for the Commission 19 Short title, Crown application and commencement

______

SP Bill 48B Session 2 (2006) †671 ii Scottish Commission for Human Rights Bill

Schedule 1—Scottish Commission for Human Rights Schedule 2—Inquiries: supplementary provision as to evidence Schedule 3—Places of detention: powers of entry, inspection and interview

†672 Scottish Commission for Human Rights Bill 1

Amendments to the Bill since the previous version are indicated by sidelining in the right margin. Wherever possible, provisions that were in the Bill as introduced retain the original numbering.

Scottish Commission for Human Rights Bill [AS PASSED]

An Act of the Scottish Parliament to provide for the establishment and functions of the Scottish Commission for Human Rights.

Scottish Commission for Human Rights 1 Scottish Commission for Human Rights 5 (1A) There is established a body corporate to be known as the Scottish Commission for Human Rights (and referred to in this Act as the “Commission”). (6) Schedule 1 makes further provision about the Commission.

General functions 2 General duty to promote human rights 10 (1) The Commission’s general duty is, through the exercise of its functions under this Act, to promote human rights and, in particular, to encourage best practice in relation to human rights. (2) In this Act, “human rights” means— (a) the Convention rights within the meaning of section 1 of the Human Rights Act 15 1998 (c.42), and (b) other human rights contained in any international convention, treaty or other international instrument ratified by the United Kingdom. (2A) In this section, “promote”, in relation to human rights, means promote awareness and understanding of, and respect for, those rights. 20 (3) In deciding what action to take under this Act in pursuance of its general duty, the Commission must have regard, in particular, to the importance of exercising its functions under this Act in relation to–– (a) the Convention rights, and (b) human rights of those groups in society whose human rights are not, in the 25 Commission’s opinion, otherwise being sufficiently promoted.

SP Bill 48B Session 2 (2006)

†673 2 Scottish Commission for Human Rights Bill

4 Information, guidance, education etc. (1) For the purposes of its general duty, the Commission may— (a) publish or otherwise disseminate information or ideas, (b) provide advice or guidance, 5 (c) conduct research, (d) provide education or training. (2) The Commission may charge reasonable fees in connection with anything done by it or on its behalf under subsection (1). (3) Sums paid to the Commission in respect of fees charged under subsection (2) are to be 10 retained by it and applied to meet expenses incurred by it in doing anything under subsection (1).

4A Monitoring of law, policies and practices (1) For the purposes of its general duty, the Commission may review and recommend changes to— 15 (a) any area of the law of Scotland, or (b) any policies or practices of any Scottish public authorities. (2) The Commission must consult the Scottish Law Commission before undertaking a review of any area of the law under subsection (1)(a).

14 Power to co-operate etc. with others 20 (1) The Commission may, in the exercise of any of its functions— (a) consult, (b) act jointly with, (c) co-operate with, or (d) assist, 25 any other person. (2) The Commission must seek to ensure, so far as practicable, that any activity undertaken by it under this Act does not duplicate unnecessarily any activity undertaken by any other person under any other enactment.

14A No power to assist in claims or legal proceedings 30 (1) The Commission may not provide assistance to or in respect of any person in connection with any claim or legal proceedings to which that person is or may become a party. (2) In subsection (1), “assistance” includes advice, guidance and grants.

Strategic plans 4B Strategic plans 35 (1) The Commission must, before the beginning of each 4 year period, lay before the Parliament a plan (referred to in this section as a “strategic plan”) setting out

†674 Scottish Commission for Human Rights Bill 3

information as to how the Commission proposes to fulfil its general duty during that period. (2) The plan must, in particular, set out— (a) the Commission’s objectives and priorities for the period to which the plan relates, 5 (b) a statement of any areas of the law which it proposes to review under section 4A(1)(a) during that period, (c) details of the other activities or kinds of activities which it proposes to undertake during that period, and (d) a timetable for each review and other activity or kind of activity referred to in 10 paragraphs (b) and (c). (3) Before laying a strategic plan before the Parliament, the Commission must provide a draft of it to, and invite comments on it from— (a) the Parliamentary corporation, and (b) such other persons as the Commission considers appropriate. 15 (4) The Commission must arrange for the publication of each strategic plan laid before the Parliament. (5) The Commission may, at any time during a 4 year period, review the strategic plan for the period and lay a revised plan for the period before the Parliament. (6) Subsections (3) to (5) apply to a revised plan as they apply to a strategic plan. 20 (7) In this section, “4 year period” means— (a) the period of 4 years beginning with the day on which section 2 comes into force, and (b) each subsequent period of 4 years.

Inquiries

25 5 Power to conduct inquiries (1) The Commission may, in relation to any matter relevant to its general duty, conduct an inquiry into the policies or practices of— (a) a particular Scottish public authority, (b) Scottish public authorities generally, or

30 (c) Scottish public authorities of a particular description, in connection with the matter. (2) Subsection (1) is subject to section 6. (3) The matter in relation to which an inquiry is conducted is referred to in this Act as the “subject matter” of the inquiry.

35 (4) Before taking any step in the conduct of an inquiry, the Commission must— (a) draw up— (i) terms of reference for the proposed inquiry, and (ii) a summary of the procedure to be followed in the conduct of the inquiry,

†675 4 Scottish Commission for Human Rights Bill

(b) give notice of— (i) the proposed inquiry, (ii) its terms of reference, and (iii) the summary of procedure, 5 to each relevant Scottish public authority, and (c) publicise— (i) the proposed inquiry, (ii) its terms of reference, and (iii) the summary of procedure, 10 in such manner as it considers appropriate to bring them to the attention of any other persons likely to be affected by the inquiry. (5) An inquiry is to be conducted in public except to the extent that the Commission considers it necessary or expedient that any part of the inquiry should be conducted in private. 15 (6) Otherwise, the procedure to be followed in the conduct of an inquiry is to be such as the Commission may determine. (7) In subsection (4)(b), “relevant Scottish public authority” means, in relation to a proposed inquiry, any Scottish public authority— (a) which the Commission considers is likely to be required under section 7(1) to give 20 evidence, produce documents or provide information for the purposes of the inquiry, or (b) any of whose members, officers or staff the Commission considers is likely to be so required.

6 Restrictions as to scope of inquiry 25 (1) The Commission may not, in the course of an inquiry (including the report of the inquiry), question the findings of any court or tribunal. (2) The Commission may conduct an inquiry into the policies and practices of a particular Scottish public authority only if— (a) the authority is the only Scottish public authority with functions in relation to the 30 subject matter of the inquiry, or (b) the subject matter of the inquiry is about whether the human rights specified in subsection (6) are being respected by the authority. (3) The Commission may not conduct an inquiry into the policies and practices of any Scottish public authority in relation to a particular case. 35 (4) However, subsection (3) does not prevent the Commission taking such policies and practices into account in the course of an inquiry. (5) The Commission may conduct an inquiry in relation to the management or operation of a particular institution only if— (a) the institution is the only one of its kind in Scotland, or

†676 Scottish Commission for Human Rights Bill 5

(b) the subject matter of the inquiry is about whether the human rights specified in subsection (6) are being respected at the institution. (6) The human rights referred to in subsections (2)(b) and (5)(b) are those contained in the following, so far as ratified by the United Kingdom, namely— 5 (a) the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by Resolution 39/46 (10th December 1984) of the General Assembly of the United Nations, (b) the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, done at Strasbourg on 26th November 1987, 10 (c) any protocol to those Conventions, and (d) such other international conventions, treaties or other international instruments as Her Majesty may by Order in Council specify for the purposes of this section. (7) No recommendation to make an Order in Council under subsection (6)(d) is to be made to Her Majesty in Council unless a draft of the Order has been laid before and approved 15 by resolution of the Parliament. (8) In this section, “institution” means a prison, hospital, school, college, care home or other such establishment.

7 Evidence (1) For the purposes of an inquiry, the Commission may require any person specified in 20 subsection (2) to— (a) give oral evidence, (b) produce documents, or (c) otherwise provide information, relevant to the subject matter of the inquiry. 25 (2) Those persons are— (a) any Scottish public authority, (b) any member, officer or member of staff of a Scottish public authority who, in the opinion of the Commission, is able to give the evidence, supply the information or produce the documents. 30 (3) The Commission may, in the course of an inquiry, take into account any evidence, information or document which it has obtained otherwise than by virtue of a requirement imposed under subsection (1), provided the evidence, information or document is relevant to the subject matter of the inquiry. (4) A person is not required under this section to answer any question, produce any 35 document or provide any information which the person would be entitled to refuse to answer, produce or provide in proceedings in a court in Scotland. (4A) In section 34(2) of the Legal Aid (Scotland) Act 1986 (c.47) (which specifies the purposes for which the restriction in section 34(1) of that Act on disclosure of information furnished to the Scottish Legal Aid Board does not apply), after paragraph 40 (d) insert—

†677 6 Scottish Commission for Human Rights Bill

“(e) for the purposes of an inquiry by the Scottish Commission for Human Rights under section 5 of the Scottish Commission for Human Rights Act 2006 (asp 00).”. (5) Schedule 2 makes further provision in connection with requirements under subsection 5 (1).

8 Places of detention: powers of entry, inspection and interview (1) For the purposes of an inquiry, the Commission may— (a) enter any place of detention for the purpose of exercising any power under paragraph (b) or (c), 10 (b) inspect the place of detention, and (c) conduct interviews in private with any person detained there, with that person’s consent. (2) In this section, “place of detention” means any premises, vehicle or other place in or at which an individual is or may be detained by, or with the authority or consent of, a 15 Scottish public authority. (3) For the purposes of subsection (2), an individual is detained in or at a place if he or she is imprisoned there or otherwise deprived (to any extent) of his or her liberty to leave the place. (4) For the purposes of subsection (1)(c), an interview is in private if it is outwith the 20 hearing of any person involved in the management or control of the place of detention or working at the place of detention. (5) Schedule 3 makes further provision in connection with the exercise of the powers under subsection (1).

9 Report of inquiry 25 (1) After completing an inquiry other than an excepted inquiry, the Commission must lay before the Parliament a report of the inquiry. (2) The report must, in particular, include— (a) the Commission’s findings as a result of the inquiry, and (b) any recommendations of the Commission in the light of those findings. 30 (3) The report must not make reference to the activities of a specified or identifiable person unless the Commission considers that it is necessary to do so in order for the report adequately to reflect the results of the inquiry. (4) Before finalising a report containing such a reference, the Commission must— (a) provide the person concerned with— 35 (i) a draft of the proposed report, and (ii) an opportunity to make representations concerning the proposed report, and (b) consider any representations made. (5) In subsection (1), “excepted inquiry” means an inquiry the subject matter of which falls within section 6(2)(b) or (5)(b).

†678 Scottish Commission for Human Rights Bill 7

10 Confidentiality of information (1) Subsection (2) applies to a person who is or has been— (a) a member of the Commission, (b) a member of the Commission’s staff, or 5 (c) otherwise an agent of the Commission. (2) The person must not disclose any information which— (a) has been obtained by or on behalf of the Commission for the purposes of an inquiry, and (b) is not at the time of the disclosure, and has not previously been, in the public 10 domain, unless the disclosure is authorised by subsection (3). (3) Disclosure is authorised for the purposes of subsection (2) only so far as— (a) it is made with the consent of the person from whom the information was obtained, 15 (b) it is necessary for the purpose of enabling or assisting the exercise by the Commission of any of its functions under this Act, or (c) it is made for the purposes of legal proceedings, whether criminal or civil (including the purposes of the investigation of any offence or suspected offence). (4) A person who knowingly contravenes subsection (2) commits an offence. 20 (5) A person guilty of an offence under subsection (4) is liable— (a) on summary conviction, to a fine not exceeding the statutory maximum, or (b) on conviction on indictment, to a fine.

Intervention in civil proceedings 11 Power to intervene 25 (1) Subsection (2) applies to civil proceedings before a court, except children’s hearing proceedings. (2) The Commission may— (a) with leave of the court, or (b) at the invitation of the court,

30 intervene in the proceedings for the purpose of making a submission to the court on an issue arising in the proceedings. (3) The Commission may intervene under subsection (2) only if it appears to the Commission that the issue arising in the proceedings— (a) is relevant to its general duty, and

35 (b) raises a matter of public interest. (4) An application by the Commission for leave under subsection (2)(a) must set out— (a) the issue arising in the proceedings which the Commission intends to address, and (b) a summary of the submission that the Commission intends to make.

†679 8 Scottish Commission for Human Rights Bill

(5) An invitation under subsection (2)(b) must set out the issue arising in the proceedings upon which the court seeks a submission. (6) The court may grant leave for or invite the Commission to intervene under subsection (2) only if it is satisfied that the intervention of the Commission is likely to assist the 5 court. (7) Further provision as to the procedure in any intervention under subsection (2), including in particular provision as to the form that any submission by the Commission is to take, may be prescribed by Act of Sederunt. (8) Subsection (2) is without prejudice to the Commission’s capacity to intervene in any 10 proceedings before any court or tribunal under an enactment or in accordance with the practice of the court or tribunal. (9) In subsection (1)— “civil proceedings” includes inquiries instituted under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c.14), 15 “children’s hearing proceedings” means any proceedings on an application made to the sheriff, and any other proceedings before the sheriff court or Court of Session (whether on appeal or otherwise), under any provision of Part II of the Children (Scotland) Act 1995 (c.36) in relation to a children’s hearing, “court” means the Court of Session and sheriff court, both as courts of first 20 instance and appeal, and the Land Court.

Reports 12 Annual report (1) The Commission must lay before the Parliament annually a general report on the exercise of its functions during the year to which the report relates (“the reporting 25 year”). (2) The report must, in particular, include— (a) a summary of any inquiries conducted by the Commission during the reporting year, and (b) a summary of any other activities undertaken by it during that year in pursuance 30 of its general duty. (3) In preparing a report under this section, the Commission must comply with any directions given by the Parliamentary corporation as to the form and content of the report.

13 Publication of reports 35 (1) The Commission must arrange for the publication of reports laid by it before the Parliament. (2) The Commission may publish other reports on matters relevant to its general duty.

General 15 Protection from actions for defamation 40 (1) For the purposes of the law of defamation—

†680 Scottish Commission for Human Rights Bill 9

(a) any statement made by the Commission— (i) in conducting an inquiry, (ii) in communicating with any person for the purposes of an inquiry, or (iii) in a report of an inquiry, 5 has absolute privilege, (b) any other statement made by it in pursuance of the purposes of this Act has qualified privilege, and (c) any statement made to it in pursuance of those purposes has qualified privilege. (2) In subsection (1), “statement” has the same meaning as in the Defamation Act 1996 10 (c.31).

16 Giving of notice (1) Any notice to be given to any person under any provision of this Act must be given— (a) in writing, and (b) by one of the means specified in subsection (2). 15 (2) Those means are— (a) delivering the notice to the person, (b) sending it by registered post or recorded delivery service addressed to the person at— (i) in the case of an individual, the person’s usual or last known address or the 20 person’s place of business or work, (ii) in any other case, the person’s registered or principal office, (c) sending it to the person by some other means (including electronic means) which the person giving the notice considers likely to cause it to be delivered on the same or next day. 25 (3) A notice which is given by electronic means is to be treated as being in writing if it is received in a form which is legible and capable of being used for subsequent reference. (4) A notice given by a means specified in subsection (2)(c) is, unless the contrary is proved, to be presumed to be delivered on the next working day following the day on which it is sent. 30 (5) In subsection (4), “working day” means any day other than a Saturday, a Sunday or a day which, under the Banking and Financial Dealings Act 1971 (c.80), is a bank holiday in Scotland.

17 Meaning of “Scottish public authority” In this Act, “Scottish public authority” means— 35 (a) any body or office which, or office-holder who, is— (i) a part of the Scottish Administration, or (ii) a Scottish public authority with mixed functions or no reserved functions, and

†681 10 Scottish Commission for Human Rights Bill

(b) any other person who is a public authority within the meaning of the Human Rights Act 1998 (c.42), but only in so far as the public functions exercisable by the person— (i) are exercisable in or as regards Scotland, and 5 (ii) do not relate to reserved matters.

18 Interpretation In this Act, except where the context requires otherwise— “the Commission” means the Scottish Commission for Human Rights (established by section 1(1A)), 10 “Convention rights” has the meaning given in section 1 of the Human Rights Act 1998 (c.42), “human rights” has the meaning given in section 2(2), “inquiry” means an inquiry under section 5, “Parliament” means the Scottish Parliament, 15 “Parliamentary corporation” means the Scottish Parliamentary Corporate Body, “Scottish public authority” has the meaning given in section 17, “subject matter”, in relation to an inquiry, is to be construed in accordance with section 5(3).

18A Preparation for the Commission 20 (1) The Parliamentary corporation may do anything that it considers necessary or expedient in preparation for the establishment of the Commission. (2) In particular, the Parliamentary corporation may determine the initial location of the Commission’s office premises. (3) Her Majesty may, by Order in Council, provide for the transfer to the Commission of 25 any— (a) property belonging to the Parliamentary corporation, (b) liabilities to which the Parliamentary corporation is subject. (4) An Order in Council under subsection (3)— (a) may make supplementary, incidental, consequential and transitional provision, 30 (b) is subject to annulment in pursuance of a resolution of the Parliament.

19 Short title, Crown application and commencement (1) This Act may be cited as the Scottish Commission for Human Rights Act 2006. (2) This Act binds the Crown. (3) This Act (except section 18A and this section) comes into force on such day as Her 35 Majesty may by Order in Council appoint. (4) An Order in Council under subsection (3) may— (a) appoint different days for different purposes, and

†682 Scottish Commission for Human Rights Bill 11

(b) contain transitional and transitory provision.

†683 12 Scottish Commission for Human Rights Bill Schedule 1—Scottish Commission for Human Rights

SCHEDULE 1 (introduced by section 1(6))

SCOTTISH COMMISSION FOR HUMAN RIGHTS

Membership

5 A1(1) The Commission consists of the following members— (a) a member appointed to chair the Commission, and (b) not more than 4 other members. (2) The member appointed to chair the Commission is to be an individual appointed by Her Majesty on the nomination of the Scottish Parliament.

10 (3) The other members are to be individuals appointed by the Parliamentary corporation.

Status 1 The Commission— (a) is not a servant or agent of the Crown, and (b) has no status, immunity or privilege of the Crown.

15 Independence 2 (1) The Commission, in the exercise of its functions, is not to be subject to the direction or control of— (a) any member of the Parliament, (b) any member of the Scottish Executive, or 20 (c) the Parliamentary corporation. (2) Sub-paragraph (1) is subject to section 12(3), paragraphs 8(2)(b), 10, 11 and 14(1) of this schedule and paragraph 5 of schedule 2.

Disqualification 3 (1) A person is disqualified from appointment, and from holding office, as a member of the 25 Commission if that person is— (a) a member of the House of Commons, (b) a member of the Scottish Parliament, or (c) a member of the European Parliament. (2) A person is also disqualified from such appointment if that person has, in the relevant 30 period, held any of the offices set out in sub-paragraph (1)(a) to (c). (3) The relevant period is— (a) in relation to the appointment of a member to chair the Commission, the year preceding the date of nomination, (b) in relation to the appointment of any other member of the Commission, the year 35 preceding the proposed date of appointment.

†684 Scottish Commission for Human Rights Bill 13 Schedule 1—Scottish Commission for Human Rights

Terms of office and remuneration 4 (1) Each member of the Commission— (a) holds office for such period not exceeding five years as the Parliamentary corporation, at the time of appointment, may determine, and 5 (b) is eligible for reappointment to the same office (whether the reappointment is for a consecutive period or otherwise) but reappointment for a third period is not competent. (2A) The member appointed to chair the Commission may be— (a) relieved of office by Her Majesty at the member’s request, or 10 (b) removed from office by Her Majesty if condition A or B is satisfied. (2B) Any other member of the Commission may be— (a) relieved of office by the Parliamentary corporation at the member’s request, or (b) removed from office by the Parliamentary corporation if condition A or B is satisfied. 15 (3A) Condition A is that— (a) the Parliamentary corporation is satisfied that the member has breached the member’s terms of appointment, and (b) the Parliament resolves that the member should be removed from office for that reason. 20 (3B) Condition B is that the Parliament resolves that it has lost confidence in the member. (3C) A resolution under sub-paragraph (3A)(b) or (3B), if passed on division, must be voted for by not less than two thirds of those voting. (4) Each member of the Commission is entitled to— (a) such remuneration, and 25 (b) such allowances, as the Parliamentary corporation may determine. (6) In other respects, each member of the Commission holds office on such terms and conditions as the Parliamentary corporation may determine.

Pensions etc.

30 6 (1) The Commission may, with the approval of the Parliamentary corporation, make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of the Commission and such arrangements may include, in particular— (a) the making of contributions or payments towards provision for such pensions, 35 allowances, or gratuities, and (b) the establishing and administering of one or more pension schemes. (2) References in sub-paragraph (1) to pensions, allowances and gratuities include references to, as the case may be, pensions, allowances or gratuities by way of compensation for loss of office.

†685 14 Scottish Commission for Human Rights Bill Schedule 1—Scottish Commission for Human Rights

Proceedings etc. 7A(1) The Commission may regulate its own procedure (including any quorum). (2) Where the member appointed to chair the Commission is not present at a meeting of the Commission, any other member of the Commission may chair the meeting.

5 (3) The validity of any acts of the Commission is not affected by any— (a) defect in the appointment of a member of the Commission, (b) disqualification from appointment as a member of the Commission, or (c) vacancy in the membership of the Commission.

General powers

10 8 (1) The Commission may do anything which appears necessary or expedient for the purpose of, or in connection with, or which appears conducive to, the exercise of its functions. (2) In particular, the Commission may— (a) enter into contracts, and (b) with the consent of the Parliamentary corporation, acquire and dispose of land.

15 Delegation 9 (1) Any function of the Commission may be exercised on its behalf— (a) by any person (whether or not a member of the Commission or its staff) authorised by the Commission to do so, and (b) to the extent so authorised. 20 (2) Sub-paragraph (1) does not affect the Commission’s responsibility for the exercise of its functions.

Location of office 10 (1) The Commission’s determination of the location of its office premises is subject to the approval of the Parliamentary corporation.

25 Staff 11 (2) The Commission may, with the consent of the Parliamentary corporation as to numbers, appoint staff. (3) The appointment of staff is to be on such terms and conditions as the Commission may, with the approval of the Parliamentary corporation, determine. 30 (5) The Commission may, with the approval of the Parliamentary corporation, make arrangements for the payment of pensions, allowances or gratuities to, or in respect of, any person who has ceased to be a member of staff. (6) References in sub-paragraph (5) to pensions, allowances and gratuities include references to, as the case may be, pensions, allowances or gratuities by way of 35 compensation for loss of employment.

†686 Scottish Commission for Human Rights Bill 15 Schedule 1—Scottish Commission for Human Rights

Sharing of premises, staff, services and other resources 11A(1) The Commission may enter into arrangements with any other public body or office- holder for the sharing of premises, staff, services or other resources. (2) In considering its requirements as to premises, staff, services and other resources, the 5 Commission must have regard, with a view to ensuring the economic, efficient and effective use of resources, to the desirability of entering into arrangements under sub- paragraph (1).

Accountable officer 12 (1) The Parliamentary corporation must designate a member of the Commission or of the 10 Commission’s staff as the accountable officer for the purposes of this paragraph. (2) The functions of the accountable officer are— (a) signing the accounts of the expenditure and receipts of the Commission, (b) ensuring the propriety and regularity of the finances of the Commission, (c) ensuring that the resources of the Commission are used economically, efficiently 15 and effectively, and (d) the duty set out in sub-paragraph (3), and the accountable officer is answerable to the Parliament for the exercise of those functions. (3) Where the accountable officer is required to act in some way but considers that to do so 20 would be inconsistent with the proper performance of the functions specified in sub- paragraph (2)(a) to (c), the accountable officer must— (a) obtain written authority from the Commission before taking the action, and (b) send a copy of the authority as soon as possible to the Auditor General for Scotland.

25 Finance 13 (1) The Parliamentary corporation is to pay— (a) the remuneration and allowances of each member of the Commission, and (b) any expenses incurred by the Commission in the exercise of its functions, so far as those expenses are not met out of sums received and applied by it under section 30 4(3). (2) The Commission must, before the start of each financial year, prepare proposals for its use of resources and expenditure during the year and send the proposals to the Parliamentary corporation for approval by such date as the Parliamentary corporation may determine. 35 (3) The Commission may, in the course of a financial year, prepare revised proposals for its use of resources and expenditure during the remainder of the year and send the proposals to the Parliamentary corporation for approval. (3A) The proposals or, as the case may be, revised proposals must include a statement that the Commission has complied with the duty in paragraph 11A(2) in preparing the proposals.

†687 16 Scottish Commission for Human Rights Bill Schedule 2—Inquiries: supplementary provision as to evidence

(4) Sub-paragraph (1)(b) does not require the Parliamentary corporation to pay any expenses incurred by the Commission which exceed, or are otherwise not covered by, any proposals approved under sub-paragraph (2) or (3). (5) However, the Parliamentary corporation may pay those expenses. 5 (6) The financial year of the Commission is— (a) the period beginning with the date on which the Commission is established and ending with 31st March next following that date, and (b) each successive period of 12 months ending with 31st March.

Accounts and audit

10 14 (1) The Commission must, in accordance with such directions as the Scottish Ministers may give— (a) keep proper accounts and accounting records, (b) prepare annual accounts in respect of each financial year, and (c) send a copy of the annual accounts to the Auditor General for Scotland for 15 auditing. (3) If requested by any person, the Commission must make available at any reasonable time, and without charge, in printed or electronic form, the audited accounts, so that they may be inspected by that person.

Scottish Public Services Ombudsman 20 15 In the Scottish Public Services Ombudsman Act 2002 (asp 11), in schedule 2 (which lists the authorities subject to investigation under that Act), in Part 2 (entries amendable by Order in Council), before paragraph 38 insert— “37B The Scottish Commission for Human Rights.”.

Freedom of information

25 16 In the Freedom of Information (Scotland) Act 2002 (asp 13), in schedule 1 (which lists the Scottish public authorities subject to that Act), in Part 7 (other authorities), before paragraph 81 insert— “80B The Scottish Commission for Human Rights.”.

SCHEDULE 2 30 (introduced by section 7(5))

INQUIRIES: SUPPLEMENTARY PROVISION AS TO EVIDENCE

Requirements to give evidence etc. 1 The Commission may impose a requirement on a person under section 7(1) by giving notice to the person specifying—

35 (a) where the person is required to give oral evidence— (i) the time and place at which the person is to attend to give evidence, and

†688 Scottish Commission for Human Rights Bill 17 Schedule 2—Inquiries: supplementary provision as to evidence

(ii) the particular matter or matters about which the person is required to give evidence, (b) where the person is required to produce a document or documents— (i) the document, or types of documents, which the person is to produce, 5 (ii) the date by which it or they must be produced, and (iii) the particular matter or matters in connection with which they are required, (c) where the person is required otherwise to provide information— (i) the nature of the information required, (ii) the date by which it must be provided, and 10 (iii) the particular matter or matters in connection with which the information is required.

Cancellation of requirements notified under paragraph 1 2 (1) A person to whom notice has been given under paragraph 1 may apply to the sheriff for cancellation of any requirement imposed by the notice. 15 (2) On such an application, the sheriff may cancel the requirement if satisfied that the requirement is— (a) unnecessary having regard to the purposes of the inquiry to which the notice relates, (b) undesirable for reasons of national security, or 20 (c) otherwise unreasonable.

Administration of oaths 3 The Commission may— (a) administer an oath to any person giving evidence to it for the purposes of an inquiry, and 25 (b) require any such person to take an oath.

Obstruction and contempt 4 (1) Sub-paragraph (3) applies where any person to whom notice has been given under paragraph 1— (a) refuses or fails, without reasonable excuse, to comply with any requirement 30 specified in the notice, (b) refuses or fails, without reasonable excuse, when attending to give evidence as required by the notice— (i) to take an oath on being required to do so under paragraph 3(b), or (ii) to answer any question relevant to any matter specified in the notice, or 35 (c) deliberately alters, suppresses, conceals or destroys any document which the person is required by the notice to produce.

†689 18 Scottish Commission for Human Rights Bill Schedule 3—Places of detention: powers of entry, inspection and interview

(2) Sub-paragraph (3) also applies where the Commission considers that any such person as is mentioned in sub-paragraph (1) is likely to do any of the things specified in paragraphs (a) to (c) of that sub-paragraph. (3) Where this sub-paragraph applies, the Commission may report the matter to the Court of 5 Session. (4) On such a report, the Court may, after hearing any evidence or representations on the matter, (either or both)— (a) make such order for enforcement as it sees fit, (b) deal with the matter as if it were a contempt of the Court.

10 Allowances and expenses 5 The Commission may pay to persons giving evidence, producing documents or providing information pursuant to a notice given under paragraph 1 such allowances and expenses as it may, with the approval of the Parliamentary corporation, determine.

SCHEDULE 3 15 (introduced by section 8(5))

PLACES OF DETENTION: POWERS OF ENTRY, INSPECTION AND INTERVIEW

Evidence of authority 2 The Commission or any other person entitled to exercise any power under section 8(1) (referred to in this schedule as “an authorised person”) must, if required to do so, 20 produce written evidence of that entitlement. 2A A person required to produce written evidence of entitlement under paragraph 2 cannot exercise the power under section 8(1) to which the entitlement relates until the person produces such evidence.

Obstruction and contempt

25 4 (1) Where any person intentionally obstructs the Commission or an authorised person acting in the exercise of a power under section 8(1), the Commission may report the matter to the Court of Session. (2) On such a report, the Court may, after hearing any evidence or representations on the matter, (either or both)— 30 (a) make such order for enforcement as it sees fit, (b) deal with the matter as if it were a contempt of the Court.

†690 †691 Scottish Commission for Human Rights Bill [AS PASSED]

An Act of the Scottish Parliament to provide for the establishment and functions of the Scottish Commission for Human Rights.

Introduced by: Cathy Jamieson On: 7 October 2005 Supported by: Robert Brown Bill type: Executive Bill

©

SP Bill 48B Session 2 (2006) †692

ISBN: 978-1-4061-8129-6

9 781406 181296